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?