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.



No comments:

Post a Comment

Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.