Tuesday, December 22, 2009

Interesting Drug Decision from the IL Appellate Court

Recently the Illinois Appellate Court, First District (Chicago area) issued a decision in an interesting and important case. In People v. Clinton the defendant was convicted of possession with intent to deliver more than 1 but less than 15 grams of heroin. That is a Class 1 felony punishable by 4-15 years in prison. In this case, defendant was sentenced to 10 years.

The decision is a nice read but here is the short and sweet version. Defendant was spotted by 3 undercover Chicago police officers in a "high-crime area". The officers testified when defendant saw them and realized they were cops he turned and walked away. Defendant eventually started running and was seen throwing something to the ground [As a side note, this is a very typical fact pattern].

The object allegedly thrown was a bag that contained 13 smaller bags of white powder, suspect heroin. $40 was found on defendant's person and nothing else.

As with all other drug cases, the suspected narcotics were packaged and sent to the Illinois State Police Crime Lab for testing and analysis. The crime lab is also where the drugs are officially weighed.

The lab technician testified he only tested 6 of the smaller bags or 1.336 grams. This is normal and is typically allowed where all of the suspected drugs look the same. And I am sure in this case that was true. But there is case law that discusses fake or look-a-like drugs and apparently heroin is easy to fake.

In People v. Jones, 174 Ill. 2d 427 (1996) the Illinois Supreme Court held that just because one bag may test positive for heroin, it's an improper assumption that any and all remaining bags will also test positive.

In Illinois, possession with intent to deliver less than 1 gram of a controlled substance is a less serious offense than more than 1 gram but less than 15. In this case, the technician or chemist simply emptied bags until he had a little more than 1 gram on the scale before testing them.

The issue before the Appellate Court was: can a chemist combine packets to reach a specific weight prior to testing for the presence of a controlled substance? The court held this was not proper and cited Jones as authority. The court wrote defendant could, therefore, be guilty of possession with intent to deliver less than 1 gram of heroin since some powder tested positive. That would be a Class 2 felony (3-7 years) instead of a Class 1.

The next issue on appeal was whether or not the State proved beyond a reasonable doubt the intent to deliver. Proving intent to deliver is almost always through circumstantial evidence. Factors include: weight, packaging, presence of cash, cell phones, beepers, police scanners, scales, etc. Basically the tools or signs of drug dealing is what's being looked for. In this case, the only other item(s) recovered was $40.

This is where the case gets interesting. Illinois courts have held that where small amounts of drugs are recovered, at least one other factor must be present to support an intent to deliver charge. In this case, the reviewing court cited three cases for this proposition. No where in the Illinois Pattern Jury Instructions is this judicially created requirement mentioned.

At trial the issue of intent to deliver is a question of fact the jury or judge (if bench trial) is to determine. I find this case slightly odd in that the Court addresses a factual finding at the trial court level and ultimately reverses that finding.

A reviewing court can review the sufficiency of evidence on a case by case basis and that's what they did in Clinton. Not that my opinion matters but I think this is improper of a reviewing court to do. Unless the evidence or lack thereof is so incredibly slanted in favor of one party, a reviewing court should not disturb a factual finding of the trial court. In this case, the fact finder was a jury who heard and saw all of the evidence and determined the State had met its burden in proving intent to deliver.

And quite honestly, the only people that have 13 small bags of heroin are those that are selling it. It's really that simple. Users buy a bag or two at a time. And the $40 found on the defendant was probably from the sell of 4 $10 bags because that's how they are sold here in Chicago. This was truly a typical arrest of someone selling dope. Although I didn't see the evidence, my common sense and experience handling drug cases tells me it was a proper charge.

The Court held the packaging of the drugs alone was not enough evidence to convict defendant of possession with intent. Defendant was instead found guilty of simple possession of less than 1 gram of heroin. The case was sent back to the trial court for re-sentencing.

Monday, December 21, 2009

Can The State Prove Its Case?

I am not sure when it happened but at some point in the last few months I stopped wondering if my clients were innocent and instead started asking the question "can the State prove its case?"

It appears I might have gone to the dark side of being one of those awful sleazy criminal defense attorneys. Some might say my mission is to put criminals back on the street. Or that I make my living getting guilty people off. And last but not least, that I am in this for the money and care about nothing else. I have to admit that at times I have even suggested possibilities like these to myself. How can or do I reconcile what I do with any sort of internal moral compass?

I have gotten people off that were factually guilty. But apparently the American system of criminal justice ranks our constitutional rights fairly high. Unfortunately this only works in the real world sporadically. I didn't help write the Constitution.

Additionally, I have not authored or joined any higher court (or any court) opinions that continue to shape and mold the 4th Amendment. I play by the rules that are handed to me and everyone else. I interpret what I think the law means and apply it to my cases. The trick is getting a judge to agree with my interpretation of the law and its application to this case.

I owe my clients a professional and ethical duty as an advocate. This means that if I think their rights were violated I must seek a remedy. That remedy is often a dismissal of their case. Now ask: am I simply getting someone off or am I defending the Constitution? The answer to that question depends on where you're sitting. Literally.

Depending on the day and the case, I am usually somewhere in the middle myself. I don't hold myself out as a great defender of American liberties on a fundamental level. I am not a card carrying ACLU member. I like a good helping of personal rights, but not too much. On the other hand, it's not just about winning. It's actually a little of both. In my experiences so far, criminal defense attorneys lose. And we (or at least I) lose a lot. But not all losses are equal, nor are the wins.

Anything that doesn't go my client's way, I consider a loss. Preliminary hearings, bond reductions, motion hearings, plea negotiations, etc. But I have learned to be very realistic about my cases. There are cases that can't be won. There are bonds that won't be lowered. There are motions that will be denied. And there will be plea deals that my client won't consider a deal.

Returning to the question: can the State prove its case? Well, in Cook County, City of Chicago, the State has a lot of cases to prove. I estimate there are about 12,000 open City of Chicago felony cases at any time. That is an enormous number. I don't know how many private defense attorneys are here, but I see the same 20 or so weekly. Why so few with so many cases? Honestly, there's little money in the work. I eat daily, but I am thin. I digress.

The burden of proof of guilt beyond a reasonable doubt rests on the State's shoulders. If the people bring the charge, they should be prepared to prove up their case. And I think my job as a defense attorney is to make sure the government is held to that standard.



Thursday, December 10, 2009

PC to Mac...Pure Bliss

Recently I made the huge jump from PC to Mac. Previously I never owned an Apple computer of any kind. iPods? Sure. A few. I am now, however, a full Apple addict.  If Apple made a car, I would buy it.

Apple stuff fun. It’s hip. It’s cool. It’s fashionable. And it's everywhere. I have had three different iPods and I think they are brilliant. Although I hated iTunes initially, it grew on me. I also hated Apple’s unique file extensions (like M4a), but learned to ignore them. QuickTime also never impressed me. QuickTime played .mov files and in the PC world, such files were rare. I was always annoyed that iTunes could not be installed without QuickTime.

I used to think Apple computer products were simply overpriced and designed for yuppies. Does your computer say something about you? Perhaps. Over the last 10 years, I have seen Apple laptops in movies and TV shoes with greater frequency. And the scene is always shot in a way so the viewer knows it’s an Apple.

Dozens of companies make PC’s but only Apple makes an Apple. Like it or not, there is brand awareness. And perhaps a bit of exclusivity goes with the product. Imagine if only Microsoft made PC’s. What would Bill Gates not own if that were true?

I don’t actually remember when PC’s took over the computing world. My first computer was a Texas Instruments model that hooked up to the television. It had no hard drive because I don’t think they existed at the time. And for a disk drive I was able to hook up a regular tabletop cassette player to the machine with a special cable. The storage media was a regular cassette tape.

My next computer was a Commodore Vic 20.  The setup was the same. The first real computers I remember were Apples. When I was in middle school (1983-1985), we had a small computer lab filled with Apple IIE models. The monitors were very small and I remember everything being green. Those computers also had 5.25-inch floppy drives.

 My first real experience on a PC was in my junior year of high school or 1988 when I used a friend’s computer to write my term paper. I remember using some word processing program that had a spell checker. How nice. And I remember printing that paper on a giant dot matrix printer that was terribly loud and shook like a washing machine. That paper was the first and only work of writing I completed in high school that wasn’t handwritten. That seems so odd to me for some reason.

Around 1990 or so I started using PC machines on a regular basis. And I learned DOS. This was before Windows 3.1 was released and even before DOS 5.0. I bought my first PC sometime in 1991 at Radio Shack. It had a 286 processor, 25-megabyte hard drive, and a snort of ram. Since that time I have always owned a personal computer and exclusively PC’s.

Honestly, I thought Apple stopped making computers all together. I do remember the first Macintosh computers because my uncle had one when I was in high school. Really, that company was off the radar for a long time. Not that I am a computer historian, but I don’t remember much of Apple until the iPod a few years ago. Wait, that’s not correct. I remember hearing of Apple Power PC models around 2000 or so and that most computer based music recordings were being made on Apples using very specialized software such as Pro Tools.

I think the first time I saw an Apple laptop was in the movie “Mission Impossible.” And I have a feeling that wasn’t by accident. Was that when Apple started to reinvent its brand image? Hip, cool, and high-energy movie staring Tom Cruise. Not a bad image to latch on to if that audience is your potential market. And it was a safe movie. No controversy. Limited violence. Limited vulgarities. Nothing sexual. And the movie had a huge audience.

But I think Apple’s computer comeback really took off when Intel processors began to be used in Apple’s computers. Intel chips had been around so long and most people could understand that a Pentium III was faster than Pentium I. Personally, I couldn’t tell you the name or anything about any non-Intel processor in an Apple.

I admit when the Intel driven Mac Book Pro came out I wanted one because it looked cool. Never mind that I knew nothing about the Mac operating system. I just wanted one. But the price scared me away. And besides not much software was being written for Macs. I heard you could run Windows on a Mac but that seemed ignorant to me. If you want to use Windows software, use a PC. Simple.

It’s been almost two months since I made the transition. I couldn’t be happier. I currently own a Mac Book Pro and one of the new iMacs. I also switched to AT&T and use an iPhone. All three of these machines are synced. I use Mobil Me to sync my calendar and contacts. I used to have to sync my Blackberry by plugging it into my PC. Those days are gone. Now when I enter a new entry into my iPhone calendar, it’s automatically added to the calendars on both of my Apple computers and vice versa.

I don’t use a lot of software, but I did buy Office 2008 for Mac. I also use QuickBooks and Quicken for financial stuff. It did not take too long to get used to the Mac OS. And compared to Windows it’s more stable. The system never crashes. The system never freezes. It just works. No drivers. No reboots. It just works.

Apple’s customer service is also superior in all respects. And I think the people on the phone are actually sitting in this hemisphere and English is their first language. Imagine that.

Call me a yuppie if you must. But I did wait for the prices to drop dramatically before I jumped on the Apple tree. A thrifty yuppie? Is there such a person? It doesn’t matter to me. Not only do my computers look cool, they actually function even better.

In my opinion Apples are superior in design, build, function, and support. They are just better machines. And now that the prices are within the bounds of reasonableness, I see a consistent growth in Apple's market share of personal computers for years to come.

Wednesday, December 9, 2009

Bench Trials: Why?

In Illinois every criminal defendant has the right to a trial by jury. Even those accused of the most minor misdemeanor (Class C) has the right to a jury trial.

The right to a trial is pretty holy in Illinois. All defendants who plead guilty must sign a jury waiver. The defendant is also advised of his or her right to a trial numerous times. The defendant must acknowledge on the record their right to a trial is understood and also that this right is being waived voluntarily. We attorneys cannot waive the right to trial for our client.

The defendant has the right to a jury trial but may choose a bench trial instead. In a bench trial the judge is the finder of fact and he or she alone determines guilt.

For obvious reasons bench trials are much faster. There is no jury to pick. Opening statements and closing arguments are minimized. There are no sidebars. And any evidentiary matters can be worked out immediately without having to remove the jury.

Misdemeanor trials are rare. Misdemeanor jury trials are even rarer. Most misdemeanor trials are bench trials. And oddly enough, most felony trials are bench trials too. I don't have numbers, but from my observations here in Cook County, I see many, many more cases being set for bench trial than jury trial. And I can't figure out why.

Felony trials are scattered. Felony jury trials are widely scattered. Most assistant state's attorneys, in my opinion, do not like jury trials. Whenever I start talking about a jury trial I get a variety of looks and none of them are pleasant.

People that are overworked typically don't want more work piled on them. And that's just what a jury trial is. It's more work. The assistant state's attorneys have to actually prepare for it. Not that they don't prepare for a bench trial, but a jury trial is without a doubt more work. A jury trial also moves them out of their comfort zone. They are in the same courtroom everyday. They know the judge. The judge knows the prosecutors. There are boundaries and understandings that I will never know.

I am not implying the State has home court advantage in a bench trial. The judge should apply the law equally across the board. And I think they probably do. But at the very least the prosecutors are comfortable. I am an outsider and to me it's just another courtroom. To the prosecutor, it's their office. Hmmm.

But pick 12 people and put them in the jury box. The calculus has now changed dramatically. The State now has to prove its case to 12 strangers as opposed to a judge they work in front of every day. 12 people that won't be as familiar with criminal evidence as a judge, thus raising the difficulty level.

Would you rather compel the State to prove guilt beyond a reasonable doubt to 1 familiar judge, or 12 strangers...unanimously. 1 or 12? I am leaning towards 12. If the State brings the charges they must be prepared to try the case in front of a jury. Period. And they shouldn't act offended if a jury trial is demanded. That right is in both the Federal and State constitutions.

The framers adopted the jury system, in part, because back in England guilt or innocence was determined by a sometimes tyrannical king or some other royal. In other words, the system wasn't close to being fair. By taking the power to determine guilt from an executive body and placing it in the hands of the defendant's peers, the framers aimed to even things up. And they did. Well, mostly.

Sometimes I think a bench trial makes sense. If you have a case where the evidence is so completely shocking and horrible, it might be best to remove the emotional element from the case. Jurors are people. We naturally want someone to pay for their crimes. And the worse the case the more we want to punish someone. Therefore, putting such a case before a judge might allow the shock factor to be diminished. Shock factor is a very strong force. Watch the news.

The other major issue I have with bench trials is evidence. In a jury trial only admissible evidence is presented to the jury. What makes evidence admissible is complicated. But the basic premise is that it must be relevant and it's probative value must outweigh any prejudicial effect.

If there is a dispute over the admissibility of evidence between the State and the defense, the judge makes a ruling. It's either in, or it's out. But either way the judge sees or hears the evidence. In a jury trial there's no harm as long as the jury isn't presented with improper evidence. But in a bench trial the judge sees it all, admissible or not.

A judge conducting a bench trial is to consider only properly admitted evidence when rendering a verdict. This proposition looks good in writing, but in practice does it really work?

An often fought area of evidence is the criminal record of the accused. When the case is assigned to the courtroom for arraignment, the judge does not (or is not supposed to) know anything about the defendant's background. However, if the charge is being a felon in possession of a firearm, the judge knows the defendant has at least one felony conviction. That's easy.

The rules for admitting the criminal background of an accused are very complicated, but typically prior convictions are inadmissible unless the defendant chooses to testify. There are exceptions, however but the prior statement is generally true.

If for some reason the State wanted to introduce a prior conviction there would be a hearing before trial and a ruling by the judge. Now the judge knows everything. If the prior conviction doesn't come in and it's a jury trial, no harm no foul. The jury won't hear about it and thus not be potentially prejudiced.

But if it's a bench trial the judge heard it and can't un-hear it. I think judges are very smart people and in my jurisdiction they are fair. But judges are humans. I don't know how one can keep track of what's admissible versus what's not. And on top of that, reach a verdict based only on the admissible evidence. How is that kept straight in the brain? How do you eject one fact and accept another one?

Many old school trial lawyers I know from around the courthouses have said a bench trial is the short route to a guilty verdict. Maybe I missed the memo but for most cases, I just don't see a bench trial as an option.

Give me 12 in the box and let me speak directly to them at the beginning and at the end. Curiously, only in a jury trial am I allowed to speak in court like a non-lawyer. When there is no jury, we attorneys and judges speak in legalese and it's all very formal. We use words and phrases like "expectation of privacy", "due process", and "discovery".

Although my jury trial career has just begun, I find myself very comfortable in front of a jury. It's almost like I am telling a group of friends a story. I could never have that level of comfort speaking to a judge. You must show respect to a judge and it's not proper to speak to one like a buddy. In fact, it would be highly insulting. I could never do it. In court I act like I did when I was in the Army and was around a high ranking officer, such as a colonel. Stand at attention, speak clearly and loudly, and don't speak too much.

But in front of a jury I can be me. I can speak like a regular person and maybe I can even be liked, perhaps mildly charming on a really good day. In front of a jury I can walk around, put my hand in my pocket, use my arms to emphasize points and so forth. You can't do that while speaking to a judge. It's disrespectful and would look utterly weird, if nothing else.

A jury is also sitting at about the same level as I am, while a judge is high on the bench. I can look jurors right in the eyes, but have to gaze up at a judge. And judges rarely look me in the eyes. In fact, it's so rare I notice it when they do because it's not normal. The judge sits high for a reason and it's not for the comfort of attorneys. The high seating evokes authority and power. It's the judge's courtroom. It's the judge's rules. The judge is king or queen of their courtroom.

Put me in front of just a judge and the mojo is gone. I find it very difficult to project persuasive charisma through the formality of addressing a judge. Actually I find it impossible. Perhaps it's an acquired skill, but I doubt it. After all, it wasn't on the BAR exam.

I am now back to the point of this post. Why do a bench trial? I just don't get it.



Tuesday, December 8, 2009

Michigan v. Jeremy Fisher: Question of Fact, Not Law?

New U.S. Supreme Court case that further defines "exigent circumstances" for 4th Amendment purposes.

There are a few exceptions that allow law enforcement officers to enter a private home without either an arrest or search warrant. One of the exceptions is "exigent circumstances". What those circumstances are has continued to be defined.

The Court's decision in Jeremy Fisher restates its earlier decision in Brigham City v. Stuart, 547 U. S. 398 (2006). The Court in Stuart held police officers may enter a home if they think someone inside has been or is about to be seriously injured. Curiously Stuart appears to be a restatement of Mincey v. Arizona, 437 U. S. 385, 393–394 (1978). However, this type of exigent circumstance was merely dicta in Mincey. The search in Mincey involved a murder scene that was searched over 4 days by detectives.

Both Stuart and Jeremy Fisher involved police officers responding to a call and determined someone inside was in trouble. In Stuart, it was thought a juvenile was being beaten up by adults. In Jeremy Fisher, blood was found outside the home and the defendant was seen through the window with a cut on his hand.

When the officer in Jeremy Fisher attempted to enter the home, Mr. Fisher allegedly pointed a rifle at him. Mr. Fisher was charged with assault with a dangerous weapon and possessing a dangerous weapon while committing a felony. 

The defendant filed a motion to dismiss based on a 4th Amendment violation. A hearing was held. The trial court determined the officer's actions were not reasonable under the circumstances and granted the defendant's motion to dismiss. The State appealed. The appellate court upheld the trial court's ruling but the Michigan Supreme Court overruled the appellate court.

There were two dissenting Justices in Jeremy Fisher, Justices Stevens and Sotomayor. But the dissent was not based on law. Simply put, Justice Stevens wrote the trial court was in the best position to determine if the arresting officer had a reasonable belief Mr. Fisher was in danger, thus allowing a warrantless entrance into the home.

In other words, the dissenting justices didn't think there was a question of law in this appeal but rather one of fact. And while I agree with the legal analysis the Court applied, I also agree with Justice Stevens.

Justice Stevens wrote "We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions,particularly in a case tried in a state court."



Sunday, December 6, 2009

Client Soliciation

Since I am still rather new in solo practice, I cannot sustain myself on referrals. I must find business. I hear some traffic attorneys hang out at the Daley center and wait for cases. I used to see an older attorney standing outside of 26th & California handing out business cards. But I haven't seen him in a while. He probably got reported to the ARDC and was advised to stop. When the ARDC talks, smart attorneys not only listen but take notes as well.

I never openly solicit in public. I also do not normally accept cash payments anywhere near a courthouse. I see it all the time, but it just looks shady to me. Sometimes it has to be done that way, but my policy is to meet the payee well before the court date to sign the fee agreement and collect payment.

I have picked up a few cases this year by being in the right place at the right time. I have also been fortunate enough to get some referrals from happy clients and an organization I am associated with on a pro bono basis. 

Every week I get a list of all of the Cook County felony arrests for the previous seven days. The list contains the district of arrest, date, name, address, and crime charged. This list, of course, costs money. 

I solicit through direct mail and I am not alone. Most people on this list get around 10-15 letters the week following the arrest. There are usually around 1000 felony arrests every week. Yes, that's 1000 new felony arrests per week in Cook County alone. Wow. Most of those are city of Chicago cases.

I go through the list and weed out certain crimes I don't handle such as felony DUI, domestics, sex crimes, prostitution, arson, forgery, or crimes against children. It's by choice that I do not handle such cases. I have my reasons and I stick by them. But for example, in 1979 my grandmother was killed by a drunk driver, thus no DUI defenses from me. And white collar crimes don't interest me.

At the end of my selection process, the list is usually down to just over 500. And out of that 500 about 100 will be returned as undeliverable by the postal service. It appears many people give false addresses when arrested.

The Illinois Rules of Professional Conduct states the following about solicitation:

(a) A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior professional relationship with the lawyer.

(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in‑person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress or harassment.

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

What this means is that it's permissible to mail someone who might need an attorney as long as the mailing is clearly marked that it's an advertisement and there is nothing untruthful in the communication. Clearly someone just arrested for a felony might need an attorney.

I know there are some attorneys who think soliciting business in this manner is unethical, unprofessional, and downright sleazy. I challenge anyone with such an opinion to hang out a shingle in Chicago, do nothing but criminal defense work, have little actual criminal experience, have no steady referral system, and survive in these economic times. Sounds like a great business model, but I made it work. 

At least 90% of the weekly felony arrests involve individuals from the low income areas of Chicago, the south and west side. With this economy and the high unemployment rate, very few have several thousand dollars to pay a criminal attorney. The public defender's office gets the majority of cases and we private attorneys split up the rest. There are not a lot of us either. I see the same attorneys day after day. The majority of them are either ex-assistant state's attorneys or ex-assistant public defenders. I am neither. 

Given the size of Cook County you would think there would be hundreds of private criminal defense attorneys. But this isn't the case. There is little money in what I do where I do it. I drive a Ford, not a BMW. Many of my colleagues dip into divorce or personal injury as the cases come. I am 100% criminal and getting by. I don't want to do anything else. Nothing else interests me. 

There are a few older attorneys with over 20 years experience that probably live off of referrals. They also make more money per case than I do. And I think that's fair. But the big money attorneys won't take a felony gun case through a motion hearing as cheaply as I will. For example, I went to court 5 times and eventually won a suppression motion on a gun case for a $900 bond. 

Fewer people, however, can afford the more experienced attorneys. This leaves attorneys like me (affordable) with the lion's share of those that can scrape a few dollars together. The more expensive guys probably take less cases and make more money. But I service many more clients in any given month. To date in 2009, I have accepted about 150 new cases or an average of just over 13 new cases per month. Some of these cases required one or two court appearances and some took months. I typically have 20-25 open files.  

You have to appreciate just how massive the Cook County criminal justice system is. There are 39 felony trial courtrooms for city of Chicago cases alone! Yes, 39! In addition there are 5 district courthouses in the suburbs that handle their own cases. I can't imagine what it's like to be in a county with one old courthouse that every case of any type moves through. 

I met an attorney recently at a seminar in Springfield who was from such a county in Eastern Illinois. They had 2 judges and the felony trial call was on Wednesday afternoons. That's it. One afternoon per week for all the felony cases in the whole county. I can't get my head around that. Needless to say, he did more than criminal work. And although we were both Illinois attorneys we were worlds apart. 

Not including traffic court, there are 7 criminal courthouses in the city of Chicago (5 branch courts, Domestic court on Harrison, and 26th & California). Add the suburbs and that makes 12 courthouses for the entire county. Even with this many courthouses the system is still very stressed. 

Each felony trial courtroom has about 200 open cases at any time. This is a guess though. Some have as low as 100 and some as many as 400. Most public defenders have upwards of 75-100 cases at any time. Each felony trial courtroom has 3 assistant state's attorneys and 2 public defenders. There are no shortage of cases and the county jail is well populated.

I spend a lot of time in my car. There are mornings I have cases in Bridgeview and Skokie. Take all of this running around, add all of the secretarial work I do in addition to running my practice entirely by myself and it's easy to see how I move all day. On Saturdays I usually meet new clients and I am in the county jail almost every Sunday visiting clients that are in custody. 

I rely on technology greatly in my practice. My diary is synced wirelessly to both of my Macs and iPhone via MobileMe. All of my client files are uploaded to my iDisk and accessible anywhere the internet is available or simply by my phone. I keep nothing sensitive in these files. It's mostly pleadings and scanned arrest reports. My business phone number is actually a virtual number that can be forwarded anywhere, which is always my cell phone. I use a web based virtual fax machine and I have a home office. I did have a real office until September and it was a waste of money. I was never there and no one ever came there to see me.

My practice is very service oriented. Being a lawyer is only part of the job. What I lack in experience I more than make up for by servicing the customer. My phone is answered by me 7 days a week. I get new business calls at the strangest hours. I know I have been hired on several cases because I answered my phone when no one else would. And not too many of my colleagues will drive to Englewood to meet the family of someone in the jail. That is normally how I am hired. I go to the home and meet the family. I explain the law and procedure. I make no promises other than to do my best. Unethical? I think not. 

In a county with 1000 new felony arrests per week, there is no shortage of work. But people have to know I am here if I want to be hired. I am building a reputation one case at a time and one court appearance at a time. That takes years, but so far so good. Referrals from happy clients are starting to trickle in and maybe in 10 years I can live off of referrals, but not now.

Oh, I don't do traffic cases either. 

Saturday, December 5, 2009

Trial Wardrobe Malfunction

I had a jury trial on Thursday December 3, 2009 at 26th & California. My client was charged with possession with intent to deliver over 5,000 grams (11 lbs) of marijuana. This is a class X felony punishable by imprisonment from 6 to 30 years. It is also not eligible for probation.

The jury was picked on the previous afternoon. Opening statements started at 10:45 am. The State called 4 police officers as its witnesses. The direct testimony was fairly brief and so was cross. This was a pretty straightforward case with not many facts in dispute. I needed the police to stick to their reports and they did. This case was not going to be won on cross; it was all argument.

The State rested. It was 12:30 pm. The jury was sent to lunch. I moved for a directed verdict. The judge denied my motion. We did jury instructions. And at 1:15 pm we were cut loose until 2:00 pm when I would open the defense's case.

In the bathroom during lunch my trouser's zipper broke. This wasn't going to be too much of a problem during my directs as I would be standing behind a lectern right next to the jury box. I told the judge about my problem. He said I could sit at counsel table and argue. I quickly said "no, thank you."

I cannot imagine doing closing arguments while sitting down 20 feet from the jury box. I could not be effective. My persuasiveness would vanish entirely. I speak with my hands and I don't stand still. If I move I can see if the eyes of the jurors are following me and quickly engage any that may not be.

Fortunately my slacks fit me properly and the fly pretty much laid flat. And my suit coat gently covered the very top of the fly near the button. When I sat down, however, it all opened up. My client got a chuckle out of it.

Direct examinations went fine and I didn't think about it. Before standing up to close I remember thinking "please don't open when I am standing in front of the jury!!" I would have looked like such a schlemiel if my fly was opened. 

I stood up, walked towards the jury, and began. I am not sure if anyone noticed and I did put it out of my mind...mostly. I had planned to limit my movement but that went out the window. I have to move around. I think I even put my hands in my pockets a couple of times without thinking.

So there I was doing closing arguments with my crotch catching a cool drift. The jury found my client 'not guilty'. But I wonder had he been convicted if having an open fly in front of the jury is proper grounds for an ineffective assistance of counsel claim?



Monday, November 23, 2009

Preliminary Hearings: Make The Best of Losing

In Illinois a defendant in custody for a felony has the right to a preliminary hearing within 30 days of arrest. Or they can be indicted by the grand jury during that same amount of time. The purpose of a preliminary hearing is to determine whether or not probable cause exists to bind the case over...in other words is there enough evidence to allow the State to bring formal charges. The grand jury determines the same thing.

Probable cause for purposes of a preliminary hearing is not the same type of probable cause to arrest or search. This confuses a lot of people and understandably so. The inquiry of a preliminary hearing is twofold: a. Was a crime more likely that not committed, and b. did the defendant more likely than not commit that crime. That's it. The burden on the State to get a case through a preliminary hearing is very, very low.

As a defense attorney it is very hard to win preliminary hearings. I see attorneys with 30 years experience lose all the time. Fortunately in the city of Chicago most drugs cases (crack, heroin, and cocaine) get a no probable cause finding if the amount in question is under .7 grams. Each judge has his/her own cutoff, but under .7 grams is pretty safe in any city court room.

You can get hired to represent someone caught with .2 grams of crack, not ask one question at the preliminary and the case gets thrown out. Somehow we look like great attorneys for doing nothing other than standing there. Hey, a win is a win in this business. 

The suburbs, however, are a different story. I have a case in Markham dealing with .2 grams of cocaine. That arrest occurred on January 1, 2009 and the case is still pending. I filed a Gant motion which got continued three times because there was no judge. I ultimately lost that motion because the officer suddenly remembered the cocaine was in plain view, thus Gant is inapplicable. Plain view and inventory searches will be the end run around Gant. Predictable, if nothing else.

There is no formal discovery at the preliminary hearing phase. In city of Chicago cases we get to briefly review the arrest report immediately prior to the hearing. At least we know basically what the cop is going to say. And they testify the same way every time because they get asked the same questions every time.

If you do enough of these hearings you start to hear buzz words and phrases repeated, such as "hand to hand transaction", "furtive movement", "attempted to conceal", "white powder, suspect cocaine", "in plain view" and "high narcotics area."

And we defense attorneys ask the same questions: "How far from the defendant were you when you first saw him?", "Were you on foot or in a vehicle?", "Were you in uniform?", and "When you were in pursuit of the defendant did you ever lose sight of him?" The cops are programmed to give answers that make the answers to these questions support the arrest. Every now and then you can catch one slipping, but it's often not enough to win the hearing. The cops are given the benefit of the doubt.

Although we are on cross and get to ask leading questions, it's more of a discovery hearing. You can ask the leading questions such as: "When you approached the defendant you ordered him to stop, correct?" "He was compliant with your command?", "You next performed a protective pat down?", "And you found nothing illegal on the defendant's person during that protective pat down?" Obviously I am asking questions to which "yes" is the only allowable answer.

Although we lose most preliminary hearings, they can be useful to the defense of the case. Get the cop on the record. Elicit facts from the cop that will possibly support a motion to quash and/or suppress in the trial court. Live to fight another day I say.

I had a preliminary hearing this morning where my client was allegedly caught with a pistol during a Terry stop. I knew when I read the arrest report it was a loser at this stage. But I thought ahead to my motion to come later because I didn't see any probable cause for the stop. Once I felt I had a losing case at this stage, all I could do was make a record. And I did get some very favorable facts from the testifying officer. Here is what I got him to admit or say.

He was not in uniform and was in an unmarked car.
He was not conducting surveillance.
Upon driving by a corner he saw my client talking to two other young males.
He saw the three people standing on the corner for maybe 2 seconds before stopping the vehicle. 
When the police car stopped, my client walked away down the sidewalk.
At that time neither my client, nor the other two, were breaking any Federal, State, or local laws.
When he saw my client he could not see a pistol on his person.
When he saw my client he couldn't see anything protruding from his clothing.
When my client walked away he did not run.

As I am getting all this on the record, the cop is only thinking about the preliminary hearing. He's giving the answers he's programmed to give. He thinks he's safe. After the hearing he won't think I scored any points because the State won. But he is not thinking about the motion hearing in 4 months. I am. 

He will be subpoenaed to testify about an arrest he won't remember. And when he is being prepared to testify by the prosecutor, it will be obvious there is testimony on record by this officer that supports my motion.  

If you're in the defense business, you can see where I am going with this. The officer found the pistol during a Terry stop and frisk. But what was the basis for that stop? My argument will be the police drove by, saw three young male blacks standing on a corner, and wanted to search them. I know that's what happened. The cop knows that's what happened. And this is illegal under the 4th Amendment. Or so I will argue.

At one point during the officer's testimony where he was creating fiction, the judge and I locked eyes and rolled them simultaneously. It was beautiful. And after he made a finding of probable cause he yelled "good luck on your motion" as I was leaving. Ha! He knew the arrest was crap. I knew it was crap.

Is it more likely than not my client had a pistol on him? According to the judge, yes. Was the Terry stop valid? Well, that comes next.



Thursday, November 19, 2009

Felony Probation Violations

A violation of probation [VOP] can be very problematic for criminal defendants and their attorneys. A VOP is any violation of the conditions (or rules) of the probation. There are different types of probation, but I am referring to the many types of felony probation, i.e., gang, intensive, drug (T.A.S.C), or straight felony probation.

These different types of probation have different rules such as curfews, drug testing and counseling, obtaining a high school diploma or GED, anger management therapy etc. Along with monthly reporting to a probation officer and the payment of monthly probation fees, the list of rules one must comply with can be quite lengthy. But, probation is an alternative to prison. No one I have represented has complained too loudly about the conditions of their probation when the other choice is a lengthy prison sentence.

The most common type of probation violation I see is being arrested while on probation. Or in other words, "catching a new case". The probation department has discretion when filing a petition for violation of probation. If violated for a recent arrest, a defendant now has two cases to fight and sometimes in two different court rooms in front of two different judges. Additionally, most people arrested for a felony while on felony probation are held with no bond.

I have seen defendants violated the day after their arrest while others are not violated until after they lose their preliminary hearing. As a side note, parole violations work similarly.  Last winter I was hired to represent an 18 year old that allegedly broke into an automobile and was arrested for burglary. When I took the case the client was in custody at the county jail. I won his preliminary hearing and told his parents he would be released from custody sometime that day. I was not expecting a call from the parents the next morning asking why he was not released.

What I didn't know what that he was on felony probation and had been violated the day after his arrest. We defense attorneys don't often know our client's entire criminal background until the arraignment. In Illinois there is no formal discovery at the preliminary hearing stage. What discovery we do get is merely a sneak peak at the arrest report a few minutes before the hearing. It's not much, but at least we know some basics about the arrest.

The next court date for his VOP was not until a week later. He could not be released from jail because he was on a VOP hold. Although not paid, I appeared on his behalf at the VOP court date where the probation department withdrew the VOP petition and finally on that day, he was released from custody. Typically if the case that violated the probation goes away, so does the VOP.

A short time later I was hired to represent a man charged with two counts of delivery of a controlled substance, both class 1 felonies. The police were given a tip by a confidential informant that my client was selling drugs from inside a parked car. The police arrived to find my client sitting in his car talking to a young female. That was it. He was pulled out of the car, searched, and arrested. Both cocaine and heroin were allegedly found on him.

At his preliminary hearing the cop admitted no officer ever observed my client committing any crime; however, probable cause was found and the case was bound over. At the trial court level I filed a motion to quash and suppress based on no probable cause.

What I did not know was that my client was on probation, a fact he failed to disclose and was not noted in his criminal background. When I filed my motion the judge asked the State if they wanted to set the motion for a hearing. The assistant State's attorney declined, informing the judge they were electing to prosecute the probation violation. Not until that morning did I find found out he was already on probation. Now we have a problem.

A defendant is entitled to a hearing on a probation violation. But the standard of proof is preponderance of the evidence, or more likely than not. The standard of proof at trial, however, is beyond a reasonable doubt, or almost 100% sure. There is a huge legal distinction between these two. The State knew I had a good motion on the new case and thus chose the easy VOP route.

I had a 402 conference with the prosecutor and the judge. The judge told me he would rule against me at a hearing on the VOP. At least he was honest and upfront about it.

The client was on probation for a class 1 felony, thus he was subject to a prison term of 4-15 years on the prior case. But here is where it can get ugly: the judge could sentence a defendant to consecutive sentences on each case. 

A guilty plea or guilty verdict of a new felony while a defendant is already on felony probation exposes him to a prison sentence on each case but ran consecutively. For example, two 4 year sentences ran consecutively equals 8 years  (4 + 4 =8). In distinction, however,  are concurrent sentences which means the sentences are served at the same time. So in the above example, it would be a total of 4 years as opposed to 8. In the defense business, we always want concurrent sentencing.

The judge offered to PTU (probation terminated-unsatisfactory) the prior case and give my client 6 years on the new case. This in effect, ends the case for which he was on probation. That is, however,  a small victory because now he is only being sentenced on one case.
Today I was in court on a new case where there was also a VOP filed. My client was charged with being a felon in possession of a firearm. In this case the charge was a class 3 felony (2-5 years). However, he was on probation for a class 1 felony (4-15 years).

The new case might have been defensible by way of a motion to suppress. It was a case that could have been worked up. However, as mentioned above, the State could simply elect to prosecute the VOP. And why not? The burden of proof is lower and the prison term is longer in this case. 
I explained all of this to the client when I met him in the jail on a recent Sunday. He wanted to plead guilty. He did not want to sit in jail while I litigated his case. He did not want continuances. He wanted to cop out and do his time. It was clear I was hired to get him a deal. And so, I got him a deal.

I ended up getting his class 1 probation PTU'd and the minimum 2 year prison sentence on the new gun case. After you subtract the month he's been in the county jail, he is going to go to prison for around 90 days or even less.

Tuesday, November 17, 2009

Judge's Advice: Try The Case

One of my clients was charged earlier this year of being a convicted felon in possession of a firearm. His vehicle was allegedly involved in a crime in another local jurisdiction, thus an area wide lookout was issued.

A couple of weeks later, my client was pulled over by Chicago Police. His vehicle was driven back to the district headquarters and searched. In the trunk inside a black gym bag were some clothes and a small, semi-automatic handgun. At no time was a search warrant issued for my client's car, nor did he give consent to the search. Additionally, to date he has not been charged for the other crime either.

I filed a motion to suppress the handgun and the court conducted a hearing on my motion in late September. I called the arresting officer as my sole witness. I argued a 4th amendment violation but the court denied my motion. The court stated if the arrest was valid, the subsequent search of the vehicle was as well.

On the next court date I filed a motion to reconsider and cited Illinois case law that held closed bags found inside a car cannot be searched without a warrant. It's very complicated, but I felt the cases I cited were directly on point.

The court continued the case to read my motion and hear argument. Today my motion to reconsider was denied, thus the gun stays in. In this case the State's plea deal offer was not acceptable to my client. Therefore, I requested a 402 conference with the judge.

A 402 conference is when the State's attorney, defense counsel, and the judge meet to discuss a possible plea deal. The judge is told about the case in a light most favorable to the State along with the defendant's criminal background. Defense counsel offers mitigation material such as employment status, educational background, family structure and so forth. Simply, we defense attorneys attempt to offer reasons to go easy on sentencing.

In this case, the judge already knew the facts but he didn't know my client was Class X mandatory by background. This is again complicated, but because of some old convictions my client is subject to mandatory Class X sentencing in this case. A Class X prison sentence ranges from 6 to 30 years! The State initially offered 8.

The judge said he would give my client the minimum 6 years if he plead guilty. Ok, it doesn't get any better than that at this point. From 8 to 6 years is progress.

I was shocked, however, to quickly learn the judge and I were thinking the same thing: preserving my client's appeal rights. A guilty plea waives most appeal rights, but they are preserved upon a conviction if proper trial objections are made and other really technical stuff. 

In the past, and in situations like this, courts conducted brief stipulated bench trials. In short, facts sufficient to support a finding of guilty were agreed upon by the State and the defense. The facts were read into the record and the judge made a finding of guilty. But, the defendant never actually plead guilty. By proceeding in this manner, the defendant's appeal rights were preserved.

The judge advised me to put the case on, which means to take it to trial. 

I was informed by the judge the higher courts now completely disfavor stipulated bench trials. Ok, plan B. Jury trial? I told the judge if I take a bench trial, it's an automatic guilty. But with a jury I have some chance. After all, the State must prove my client knew the handgun was in his trunk (he did not) as the words "knowingly possess" are in the statute.

The judge smiled and said "ok, do a jury trial." The first thing I thought was how much jury tax as it risk? Jury tax is the amount of years a judge adds to a sentence after the plea deal offered in the 402 conference is refused and followed by a guilty verdict from the jury. Although jury tax is not mentioned anywhere the criminal code, it does exist.

In this case, he said he wouldn't go more than 6 years. Nice. To my client here are the options:

A. Plead guilty, give up your appeal rights, and get sentenced to 6 years.


B. Go to trial and possibly get acquitted; or if found guilty, get sentenced to 6 years with your appeal rights preserved.

Not much of a choice, really.



Monday, November 16, 2009

Appearance Welcomed With Open Arms

Last night I posted about my new case where the client was about to proceed to jury trial pro se. He changed his mind when it was clear that might not be a good idea.

This morning the only thing left to do was ask the judge to let me file my appearance. But before the judge was on the bench I spoke with the assistant State's attorney to inform her I was stepping up on the case.

To say my appearance was welcomed would be an understatement. She and the rest of her partners were actually ecstatic. And to show her appreciation I was given a big box full of discovery. Nice. I love paper.

In all seriousness the State was very happy to see an attorney on this case. With up to a minimum of 62 years in prison possible, perhaps they wanted a fair fight. Or maybe they didn't want to try the case again if it came back on appeal.

I was also pleased to find there were two exculpatory witnesses in court under subpoena. After appearing before the court I spoke with the witnesses who have great testimony to give and want to give it.

I am now on the case and on the surface it appears defensible. This is, however, a preliminary observation. Much work needs to be done before I can assess its strength.



Sunday, November 15, 2009

Defendant Advised Not To Proceed Pro Se

I was recently hired (last night) to represent a man charged with multiple counts of attempted first degree murder along with some gun charges. The defendant is in custody at Cook County Department of Corrections and his case is pending in one of the felony trial courtrooms at 26th & California.

Most of my cases are felonies and most clients are in jail. Therefore, I am usually hired by the family and rarely meet the client before I am retained.

This morning, I met my newest client.

In Latin, pro se means "for himself." In the legal world it's used to define someone who acts as his or her own attorney. I was surprised to learn my new client was proceeding in his case pro se. I was further surprised when he told me his case was set for jury trial on Monday (tomorrow). Many appeals are filed from prison pro se, but not many defendants go through a criminal jury trial representing themselves.

He was slightly hostile with me, but not rude or mean. He wanted me to know he's innocent, has a winnable case, and doesn't want to rot in the county jail while his case is pending. I completely understood. If I were innocent, I wouldn't want to be locked up either. I would demand my day in court, just as he has.

I was invited to come to court tomorrow and help him with the trial. I had to explain there was no way I was doing his jury trial tomorrow morning. I could not be prepared for a felony jury trial on my first court appearance and he understood.

He had decided to proceed pro se rather than use the free public defender because, he claims, the free attorney never spoke to him about the case. Rather, the case was just continued repeatedly. If you're sure of your innocence and want out of jail, coming back to court every 30 days without progress must be beyond frustrating.

I certainly have no objection to a criminal defendant being his own attorney if he knows what he is doing and there in lies the rub...he is not an attorney. However, it's the defendant's right...well, sort of. The trial court, ultimately, has the discretion to deny or grant a defendant's request to proceed pro se. Such a request is only allowed with great reluctance. In fact I have seen it denied more than allowed. Personally, I think  a criminal defendant representing himself during his trial is a bad idea.

Trials with pro se defendants are typically very problematic for the trial court. Most pro se defendants do not know the rules of evidence. If you do not know how to lay foundation to introduce a piece of evidence or how to properly impeach a witness, for example, it's going to be a very long trial.

The judge is going to get extremely tired and frustrated. And I imagine the jury will not be happy having to watch a trial that is constantly being interrupted by objections and admonishments by the judge. This happens enough during a normal trial. I have never seen a pro se defendant in trial. But I have seen pro se defendants in court attempting to argue a motion, and it's hard to watch.

Although I do not know the statistics, I am sure the outcome for most pro se jury trial defendants is not good. However, it could be quite compelling as a juror to see and watch the defendant plead his innocence in closing arguments. But I digress.

I wouldn't want to see anyone go to trial with a case that's not ready. This is especially true when a guilty verdict could mean a few decades in prison. Instead of walking out and wishing him luck, I chose to talk to him a little about his case and answer any questions he might have. And he was more than willing to talk to me. He wanted to convince me of his innocence.

We began to discuss his case. In an attempt to help, I asked if he had certain items of discovery he's entitled to. He did not. It quickly became clear to me his case was not ready for trial for several reasons. The most fatal reason: discovery is no where near complete. For example, he did not have criminal backgrounds of the state's key witnesses (the victims), thus lacked potential impeachment material. And based on the case facts, I am sure there is background to be had.

While he may not have had all of the discovery, he did have a sound trial strategy and knew how he wanted to present his case. He cited me a number of material inconsistencies in witness statements and explained the bias of the victims against him. Inconsistency and bias are great cross-examination tools, so is impeachment by prior bad acts I pointed out. The client is no dummy. He knows where to attack, just not how.

After about 10 minutes he decided to let me handle his case in lieu of proceeding pro se. I never said or implied he was incapable of handling his own case (though I have my doubts as any other attorney would). I simply told him discovery was incomplete, thus his case was not ready for trial. And I stressed there was more work needed to prepare his defense.  Once he realized I was right, he decided to slow down and let me prepare the case correctly. Now we have to ask the judge to allow me to file my appearance tomorrow morning. I doubt it will be a problem.



Saturday, November 14, 2009

The Not So Grand Jury

When I have to tell a client or their family the grand jury has indicted their case I often get a reaction that I equate with the sign of impending doom. It's almost as if I have told them they have terminal cancer and only 90 days to live. Yes, sometimes the reaction is that strong. I have even been asked "does that mean I am guilty?" No. It doesn't.

What is a grand jury in Cook County, Illinois? It's 12 people. How are they selected? The Illinois Criminal Code (specifically 725 ILCS 5/112-1) reads: Selection and Qualification. The grand jurors shall be summoned, drawn, qualified, and certified according to law.

In Cook County new grand juries are seated the first Monday of the month and no more than 6 grand juries can be convened at one time. What do they do? They are supposed to hear evidence and when appropriate, issue indictments or "true bills".

Let me back up and provide a little background. In Illinois a felony can be charged one of two ways, either by information or indictment. Both roads, however, end up at the same place, the felony trial courtroom. It does not matter which way the State took to get you there, once a charge if filed the procedure is the same. The defendant is arraigned (formally charged). Discovery begins. Motions are filed. Hearings are conducted. And some cases go to trial but most are plea bargained, which is the criminal equivalent to a civil settlement. Some cases plead out at the arraignment. Others take years to reach a disposition.

We in the criminal courts business use the word "disposition" to mean the case is done being litigated. A guilty verdict is a disposition. A not guilty verdict is a disposition. A guilty plea is a disposition. A dismissal is a disposition.

Cases charged by information are done via a preliminary hearing (see earlier posts for a more detailed explanation). If the judge presiding over the hearing determines there is probable cause, the defendant is charged by information. A preliminary hearing, however, is an adversarial proceeding. What this means is that the defendant is there and so is his or her attorney. The defendant has the right to confront (cross-examine) the accuser, which is usually a police officer.

The typical crimes that are charged via information through the preliminary hearing system are: drugs, guns, and retail thefts. In 2009, however, due to a new State's Attorney being elected in November 2008, the State has reduced the number of cases they are submitting to the grand jury. Earlier this year I observed a trend. If the crime involved a victim (such as robbery or aggravated battery) it went to the grand jury. This summer, however, I started to see robbery cases go through preliminary hearings and the victims coming to court to testify.

I recently had a shooting case that went through preliminary hearing with a detective as the lone witness.

The really violent crimes, such as murder, attempt murder, aggravated battery with a deadly weapon, etc go through the grand jury. What's the difference between a grand jury proceeding and a preliminary hearing? The defendant is not present at the grand jury. In fact, there isn't even a judge. Defendant's attorney is also not present. It's 12 jurors, court reporter, assistant state's attorney, and a witness. That's it. Grand jury proceedings are secret, but I do get transcripts of the proceedings during discovery.

Here's the point of the post. Grand jury proceedings are largely a sham covered up by a noble sounding name. The grand jury has subpoena power but in my experience, rarely exercises it. Any juror can ask a witness questions, but again it rarely happens. The grand jury is supposed to be an investigative body but they just sit there and must be extremely bored. Most grand jury transcripts are less than 6 pages, including the court reporter's certification. Here is an example of a typical grand jury proceeding after the witness is called and sworn:

An assistant state's attorney is asking the questions.

Q. Detective, can you state and spell your name, give your star number and unit of assignment?

A. Detective John Smith. S M I T H. Star # 999, Area 5, Robbery.

Q. Did you have occasion to investigate an armed robbery that took place at approximately 5000 W. Grand on July 1, 2009?

A. Yes.

Q. And through your investigation did you learn Mike Defendant was identified by witnesses as the assailant?

A. Yes.

Q. And through your investigation did you learn a handgun was used during the robbery?

A. Yes.

Q. Did this robbery take place in the city of Chicago, Cook County, Illinois?

A. Yes.

Then the assistant state's attorney asks if any of the jurors have questions (and they usually do not). The grand jury can retire to deliberate much like a trial jury, but again it rarely happens. Instead the foreperson says "true bill". Once those words are spoken, formal charges are filed via indictment.

I don't know if the jurors whisper among themselves because it's never recorded. Maybe they nod or give a thumbs up. But it only takes 9 out of the 12 to issue a true bill. As a comparison, a criminal trial jury must be unanimous to convict. And criminal trial juries in Illinois are also comprised of 12 jurors.

It's evident that grand jury proceedings are a slam dunk for the State. The State only has to introduce enough evidence for an indictment, which isn't much. And most of the testimony at grand jury proceedings is hearsay because the rules of evidence do not apply. Remember, there isn't a judge present.

The State will never elicit a fact favorable to the defendant. The grand jury, although intended to be an investigative body, are laypeople that know almost nothing about investigating any crime, let alone a serious one such as homicide.

Throughout the course of an investigation sometimes the detectives get information from a witness that is favorable to the defendant. Such people are never called before the grand jury and the detective will not mention these witnesses exist. The assistant state's attorney isn't going to ask the question and the grand jurors don't think to. It could be so simple too.

A juror could ask:

Q. Detective, during your investigation did you get information that someone else other than the defendant was the assailant?

A. Uh, well...yes.

Oops. Assuming the grand jury system worked, that question might open a huge can of worms for the State. Once the name of an exculpatory witness is known, the grand jury should issue a subpoena and hear what the witness saw. It never happens.

At a preliminary hearing the defendant has a chance, albeit small, to avoid being formally charged. But in Illinois, if the defendant prevails at a preliminary hearing, the State can take the same case with the same witness to the grand jury and charge via indictment. I have seen it happen and it's ugly.

Imagine being arrested for a felony and put in the county jail. Two weeks later you have your preliminary hearing and the judge finds no probable cause. You're released from custody that night and think your problem is over. Two weeks later you get a letter informing you the case has been indicted and you have to come to court. Wow. And to add insult to injury, at your next court date (the arraignment) the State is going to reset bond, or attempt to put you back in jail and more often than not, they succeed. Yikes.

My investigator is a retired Chicago Police homicide detective. He said the State could indict a ham sandwich. I found that funny.



Wednesday, November 11, 2009

7th Circuit Holds Defendant Waived Miranda

Recall my earlier post about a suspect's right to an attorney and the famous Miranda warning. The United States Court of Appeals for the 7th Circuit just decided an interesting case with Miranda implications.

In United States v. Robinson, the defendant was allegedly involved in weapons trafficking in violation of federal law. The allegations stated that Robinson traveled out of state and hired people to make 'straw purchases' of firearms, which he shipped back to his home in Maywood, IL. [A 'straw purchase' is when someone who can legally purchase a firearm does so for someone who cannot, such as a convicted felon].

When the guns arrived in Maywood, Robinson removed the serial numbers so they could not be traced. This is also a crime. However, at least two of the weapon's serial numbers were later restored by lab technicians. A subsequent investigation by officials linked Robinson to both guns.

In 2003 law enforcement officials (one from the ATF) set up a meeting with Robinson at his mother's house in Maywood. Beforehand they learned he had an outstanding warrant out of Lombard for retail theft.

When officers arrived to meet Robinson they were met by Robinson's attorney. The attorney was informed they wanted to talk to Robinson about weapons trafficking. The attorney, however, informed the officers that Robinson would not speak with them about their investigation.

Robinson was taken into custody based on the Lombard warrant. Instead of transporting Robinson to Lombard's police department, he was taken to Westchester, where he confessed via a written statement to weapons trafficking. After confessing, he was eventually taken to Lombard later that evening.

Robinson was not given a Miranda warning at his mother's house or during the car ride to Westchester. At Westchester, however, Robinson signed a Miranda waiver.

Robinson's lawyer filed a motion to suppress the confession and the district court held a hearing on the motion. According to the officers, Robinson just started talking and ultimately confessed. However, according to Robinson, he was continuously questioned during the car ride to Westchester and was told he didn't need a lawyer. Robinson claimed he signed the confession to "get out of there." He also claimed officers told his lawyer he was being taken to Lombard.

The district court denied Robinson's motion finding he initiated the conversation with law enforcement officials. Robinson was tried, convicted, and sentenced to consecutive 5 year prison sentences.

On review the 7th Circuit looked to the holding of Edwards v. Arizona, 451 U.S. 477 (1981) for guidance and agreed with the district court. 

The court found the conversation with officers was not an interrogation, thus not in violation of Edwards. The court further held the actions of the officers was not designed to elicit an incriminating response from Robinson, thus no 5th Amendment violation.

Robinson argued his detour to Westchester (instead of direct transport to Lombard) was designed to elicit a confession. Both the district and appellate court disagreed. The district court found that less than 30 minutes after leaving his lawyer, Robinson disregarded his attorney's advice and confessed. On review the 7th Circuit did not find the district court's findings as being clearly erroneous. Robinson's conviction was upheld.

I take note of a couple of facts. Robinson was savvy enough to have his lawyer present when law enforcement agents arrived. The lawyer was not retained to represent Robinson on the Lombard retail theft charge. Thus, Robinson's attorney was there to deal with the federal weapons case.

Officers (including one Federal agent) told the attorney they wanted to question Robinson about the weapons trafficking, so he knew the seriousness of the case. The 7th Circuit wrote: 
"In fact, the diversion and delay did not actually deprive Robinson of his attorney’s presence or advice. Allen [Robinson's attorney] did not attempt to accompany or follow Robinson to the police station. He was equivocal regarding whether he planned to go to the station at all that evening, as he was not representing Robinson on the retail-theft charge, and did not, in fact, make any further efforts on Robinson’s behalf that evening."

Question: is this bad lawyering or slick police work? Hindsight is always 20/20 but I would like to think I would have followed my client to wherever he was being taken, especially while in Federal custody. But the sad truth is our clients often get themselves into trouble by talking.

In conclusion I note the following: Robinson knew he was under investigation for federal weapons trafficking, thus he had his lawyer present when officers arrived to question him. I find it extremely odd that less than 30 minutes after his attorney invoked his Miranda right to remain silent, Robinson all of a sudden just started talking and confessed.

I don't disagree with the 7th Circuit's legal analysis of the case, but this one doesn't pass the sniff test.



Arizona v. Gant Defeated by Inventory Searches

On April 21, 2009 the United States Supreme Court, in a very interesting 4-1-4 vote, put some teeth back into the 4th amendment. The 4th amendment was designed to protect citizens from unreasonable searches and seizures. Most of my work in the criminal defense business interweaves with the 4th amendment.

Prior to last week's decision, if you were pulled over for a traffic violation and arrested for anything, including something minor, such as driving on a suspended license, the cops could search your car and any containers in it. Defense attorneys argued these types of searches were an end run around the 4th amendment. And now the Supreme Court agrees in Arizona v. Gant. Curiously,
Gant didn't really change the law but rather informed lower courts that New York v. Belton has been misinterpreted since it was decided in 1981.

Belton clearly held the interior of a vehicle could only be searched incident to arrest if it could still be accessed by the people removed from the vehicle. Belton built on Chimel v. California, which held that warrantless searches "incident to arrest" are limited to the area within the immediate control of the suspect. Belton was simply the vehicle version of Chimel since the latter dealt with the suspect's home.

Now that
Gant restated Belton, once the occupants of the vehicle are removed and can no longer access the inside of the vehicle it cannot be searched without a warrant or consent.....unless the cops are looking for further evidence of the crime for which the occupant(s) was/were arrested or some other reason that gets around the warrant requirement (there are not too many).

On a side note, I spoke to one judge at 26th & California in chambers after
Gant was decided. He told me that he had been reading Belton correctly all along and the holding of Gant was nothing new...at least to him.

What this means is the police can't search your car if you're arrested for a traffic violation or driving on a suspended or revoked license. A DUI arrest is questionable because the officer could claim he was searching the vehicle for evidence of alcohol consumption such as empty beer cans. I imagine these type searches will be hotly contested in the years to come.

Gant, however, is limited in scope because it only deals with vehicle searches incident to arrest. Warrantless searches of vehicles are per se unreasonable, but there are exceptions. The first one being a search incident to arrest, which Belton and Gant addressed.

An inventory search also gets around the warrant requirement. In Illinois, inventory searches are a judicially created exception to the warrant requirement. And I predict they will completely neuter
Belton and Gant.

An inventory search is done pursuant to impound. The policy is to protect the police department and vehicle owner against claims of lost property inside the vehicle. But it really just gives police the authority to search the entire vehicle, including the trunk.

Chicago police can impound a vehicle whenever the driver is arrested or if contraband is found in the car. It also costs about $1,200 to get a car out of the city of Chicago impound lot. Often the car is ripped up due to an extensive search. I know of vehicles impounded because a backseat passenger had a gram of marijuana. Ouch.

In order to get around
Belton and Gant, the police just need a reason to impound the car. Review my earlier example of driving with no license. If arrested for this offense, the vehicle cannot be searched incident to such an arrest, but it can be searched if it's going to be towed to the impound lot.

But it's not that simple. At a suppression hearing to exclude evidence found during an inventory search, the police officer has to be able to clearly articulate their department's impound policy. There is also case law that holds the officer has to follow the policy or the impound is not valid, thus any contraband found will be suppressed.

If you're a defense attorney conducting a suppression hearing involving a vehicle search, know what type of search you're dealing with. If it's a search incident to arrest, know
Belton and Gant. If it's an Illinois case, you can also offer People v. Bridgewater in support of your motion.

But if you're dealing with an inventory search, know the applicable case law. Here are some Illinois cases which you should read: People v. Hundley, 156 Ill. 2d 135 (1993), People v. Ursini, 245 Ill. App. 3d 480 (2nd Dist. 1993), and People v. Alewelt, 217 Ill. App. 3d 578 (3rd Dist. 1991).

Remember, the police officer must be following the department's policy in order for the impound to be valid. If the impound is not valid, the evidence found during the inventory search should be suppressed.



Tuesday, November 10, 2009

High Bonds Lead to More Guilty Pleas

In Illinois, if arrested for a felony the defendant must be brought before a bond judge within 48 hours. People arrested for misdemeanors are typically released from the police station after booking with a court date in a few weeks.

At bond court some are released on house arrest and a very few are released on I bond, which means they have to post no money "to walk." The majority, however, have a cash bond set.

The purpose of a cash bond is to ensure the defendant will come to future court dates. In reality, and in my opinion, the high bonds in Cook county serve to incarcerate prior to conviction. In my opinion this is unconstitutional. That statement is not universally true. Some people are simply dangerous and don't belong on the streets. But they have not been convicted yet. What about innocent until proven guilty? This is an interesting argument.

The amount of money a defendant must post "to walk" is determined at a one-two minute bond hearing. The judge hears about the case in the light most favorable to the State along with the defendant's criminal background, including any and all missed court dates. The public defender tells the judge the defendant's social background, such as age, level of education, family situation, and employment status.

I am not sure of the calculus the judges use to set bond, but usually bonds for females are lower. And obviously, less serious crimes are lower...unless there is a lot of background. I have seen gun case bonds from as low as $2,500 all the way up to $50,000. Simple drug possession cases are usually around $5,000 if there is a prior felony. Most murder defendants are held with no bond.

Not too many people can post high bonds. I see a lot of people whose family scraped together $1,000 but anything higher than that is rare. What this means is the defendant will sit in the county jail while the case is pending.

By the time the case gets through either a preliminary hearing or the grand jury, most defendants have been in jail for up to 6 weeks. Almost everyone will "cop out" and plead guilty at the arraignment if probation is offered. They would rather plead guilty to something they didn't do than sit in jail and fight the case.

In Illinois a one year prison sentence in reality is only 61 days. I have been told recently a one year sentence has been reduced to a couple of weeks and a two year sentence is only 90 days. I don't get it. But many defendants see a quick prison term as the shortest road home and don't care about a felony conviction.

There is the rub: sit in the county jail for months fighting a case on motions to quash and suppress or just plead guilty, do a month or so and come home on parole (mandatory supervised released is what it's called these days).

The only clients I have that will litigate their case and allow me to give them a defense are those who were able to post bond or those facing at least 20 years in prison if convicted. Those on bond don't mind coming to court once a month while I work up their case. And those facing serious time want me to take my time preparing their defense.

If more people were able to afford bond, I predict there would be many less guilty pleas because defendants would let their attorneys work the case up. And that takes time.

As a rule I consider a guilty plea the last option, but for many clients it's the first option. I hate having a case I feel is defensible and a client that wants to plead guilty. It stinks. But I work for my client and not my ego or my love of criminal litigation.