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 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.


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