Wednesday, December 22, 2010

Making Sense of Insanity

I feel like sharing a frustration. This type of story is sadly too typical in my day to day professional life. So, I feel the need to vent a little.

This summer I was hired to represent a young man. I represented his cousin in 2009. The young man was on probation and had picked up a new case, which also violated his probation.

I am going to try and tell both the police and the client's version of the story together so you can see how silly this is. The police were driving down the street. They see two male blacks inside of a car with the doors open. My client was not one of the boys in the car, but was standing close by eating a piece of pizza. The car in question was his mother's. The boys inside the car were installing a car stereo.

The police drive by and do nothing. My client saw them. The police came back around the corner with blue lights flashing. My client was grabbed and thrown on the back of the police car. He was frisked and searched. He was in possession of nothing illegal.

The police claim they saw a burglary in progress. They allege my client was inside the car and made a "furtive" movement towards the center console when the police approached. The police searched the car. A plastic bag was found in the console. In the bag were a few live 9mm rounds.

The police arrest my client but he doesn't know why. The cops ask him to give them a gun (this is very typical). If he does, they will let him go. He calls a friend who's in a gang. He tells the friend he needs him to put a gun in the alley but doesn't say why at first. The friend asks why he needs the gun and is finally told it's for the cops and to keep him (the client) out of jail.

The friend takes a handgun and puts it in the alley where he was told to put it. The police go and get the gun. But the client is charged with being a felon in possession of ammunition and sent to the county jail. Because his prior felony was weapons related, this new case is a Class 2 felony, or 3-7 years in prison.

I am hired after the preliminary hearing but before the arraignment. I go to the jail. He tells me the story. I appear in court at his arraignment in August. We plead not guilty. The case is continued to September.

Because the client was on probation when he picked up this new very questionable case, he now has two live cases. He had a violation of probation (VOP) and the new felony because of the bullets. And the State gets to pick or elect which matter to prosecute.

The State had a real problem with the new case. It was a crap arrest. It would probably sustain a motion to quash arrest and suppress evidence. If that happened the new case would be dismissed and the VOP would follow. The client would get out of jail and not go to prison.

Naturally, the State elected to prosecute the VOP because it's easier for them to win. And they wouldn't have to fight me over the legalities of the new case. You might be asking: aren't you talking about the same thing? Well, sort of.

The burden of proving a probation violation is merely preponderance of the evidence. Or to put it another way, more likely than not. This is a very, very low standard compared to guilt beyond a reasonable doubt in a normal criminal case.

The State offered 3 years concurrent for the VOP and new case. That offer was rejected. I set the case for a VOP hearing in November. I figured I had nothing to lose. I would put my client on the stand and let him tell the judge his side of the story. I didn't want to conference the case with the judge on the new Class 2 charge because the judge would have no option but to give him 3-7 years.

The November court date came. The State finally looked at the file because they couldn't figure out why we were having a VOP hearing (they are not that common). And then they remembered that fighting me toe to toe on the new case wasn't a good idea. The State answered "not ready" and the case was reset for hearing today, December 22.

After the hearing was rescheduled I spoke with one of the prosecutors in that courtroom. He was 2nd in charge at the time. We tried a case against each other earlier this year. I lost. But this guy and I are very nice to each other. I told him that 3 years on this new case was total crap. It made no sense and would be a complete miscarriage of justice. I reminded him that my client helped the cops recover a gun but 4 months later, was still in the county jail.

To his credit he said he would consider reducing the new case to a misdemeanor. We could plead guilty to the misdemeanor and the VOP. The sentence would be "time considered served". And the client would get out of jail that day.

It was actually me that suggested this idea. I don't want my client pleading to yet another felony for something I believe he's probably innocent of. He's only 19. I fashioned what I felt was a reasonable disposition based on the questionable new case.

The assistant prosecutor told me he would have to run it by his superior. A week later he called me. His boss wouldn't go along with it. Damn. Really? Ok, set it for hearing in December. We will put it on and see what happens. Fine. See you then. Wrong.

Since the last court date, the judge retired. All of his cases were split up between 3 other judges. The prosecutors were reassigned. I knew the judge was retiring. But no one knew what was going to happen to his cases.

Before heading to court today, I was slightly optimistic. I knew I was getting a new set of prosecutors and hoped someone would listen to reason. I even let myself think that maybe the client would be home for Christmas.

Sadly, I was wrong. The new prosecutor in charge wasn't there. Neither was the judge. The prosecutor that was there hadn't even looked at the file. I took him outside of the courtroom and explained what I wanted. I was told he didn't have the authority to do what I wanted.

And, oh by the way, we can't answer ready for hearing today either because it's a new file and there's no judge anyway. What little hope I had was crushed. The client actually took it better than I did. So did his mother. Some people don't expect the system to work. They don't expect fairness. They don't expect real justice.

Well, I do. Or at least I once did.

Let's assume for a minute that the police really did recover bullets from the car. And let's further assume they were my client's. Let's also add that this was all done via proper, lawful police work. Is all of this really worth a minimum 3 years in prison? Should the burden of proof on a probation violation really be more likely than not as opposed to beyond a reasonable doubt?

Why is the law constructed so people on probation are so easily set up to fail? I am tired of the cops putting crap cases on people on probation. I see this time and time again. The police roll up, throw some guys on the car, and stick a case on the person who is on probation or parole. The ones on probation go to the county jail. They are violated and held with no bond. Those on parole go back to prison.

After all, they're convicted felons. Who will believe them anyway? When they speak on their own behalf they lie. But when they come to court to testify for the State they are magically credible.

What really upsets me about this case is that but for the probation violation, I could probably get this case dismissed. It's very weak. But since the client was on probation somehow the law changes and most of his constitutional protections are thrown out the window.

And I don't get it.

Tuesday, November 30, 2010

Keeping The Faith

I hope that someday soon I can write about pleasantries I encounter doing my job. As I have written before, the victories are too easily forgotten and the losses seem to take root in my spirit.

Today I had a client sentenced to 2 consecutive 31 year sentences. At 85%, that means just over 26 years each for a combined real time sentence of 52.5 years. My client is 35. This is most likely a life sentence.

I wrote a little about this case a year ago. I was hired just in time to stop the client from representing himself at a jury trial. This client maintained his innocence from the first second I met him. I didn't think he was lying. Further field work found much support for his innocence.

Prior to my appearance in this matter, the client had been difficult for the courtroom personnel and judge. It's never a good thing for a defendant to represent himself. But this guy is very principled. He was innocent. He wanted his trial. And he demanded it. The deputies told me that prior to my entry, he was difficult to deal with. Imagine if you were innocent but were sitting in the county jail with no bail. How agreeable would you be?

I walked in. Advised him to slow down. He allowed me to represent him. He took all of my advice regarding trial strategy. The client was charged with shooting 2 young men on the south side of Chicago. This was a very serious case with a considerable amount of potential prison exposure.

I was ready to try this case in 6 months, but the trial was delayed until July. It was my recommendation to take a bench trial. I was burned in April by a jury that didn't want to be there. The State's case was made up of entirely eye witness testimony from felons. I could tell from the police reports they were lying. And since my client was claiming actual innocence, they had to have been lying. My investigation of the case supported everything my client told me.

My analysis was that I felt it was better to trust an educated judge to see through a fictional story. My trial strategy was to pick apart the witness stories bit by bit. I did that. They all lied. They were all inconsistent with each other. I also put on a credible defense and the client testified brilliantly on his own behalf.

If I have an innocent client that can speak in complete sentences, I have no problem putting him on the stand. If he's telling the truth, the State will do no damage on cross. That was true in this case. But it wasn't enough. 

I wrote about the trial and the guilty verdict that still has me stunned to this day. Today my motion for a new trial was finally heard. In my argument for a new trial, I respectfully offered the judge erred in his credibility findings. I didn't rehash all of the inconsistencies and impeachments as I had in closing arguments. I didn't expect this judge to reverse himself. And he didn't. But I laid out a road map for the appellate attorney to follow.

My client told me that he had something he wanted to say to the judge before he was sentenced. I advised him not to say anything, but that ultimately it was his decision. And if he decided to speak, I would stand next to him in support.

Right on cue when asked if he had anything to say before being sentenced, my client pulled out 3 handwritten pages of legal pad paper and read a very well written argument that left me impressed on two accounts.

Keep in mind, I had no idea what was going to come out of his mouth. I had advised him not to insult the court or use profanity in any way. And he didn't. His argument, while largely a repetition of my own, was well organized and worded. I was impressed he kept his criticisms of the judge above the belt. I doubt I would be as composed.

At the end he told the judge again he's innocent and believes he will one day be vindicated. That was the second layer of impressiveness, his continued faith in the system.

He had and continues to have faith in a system that just sent him to prison for life. To me it seems naive. He was willing to be his own trial attorney because he believed his innocence would automatically prevail.

And from day 1 of my involvement in the case, he told me repeatedly he would not be convicted. His mind couldn't believe that a fictional story told by low-life, gangster felons would ever be enough to deprive him of his liberty.

If I am being honest, I too was naive. I didn't expect the State to prevail with this case either. If I had, I would have tried to negotiate a plea deal. But this case was going to trial from the minute he got indicted. He probably wouldn't have plead to a 1 year prison sentence because he would have to admit to something he didn't do.

If there is one thing this client said to me enough times to burn a trail in my memory it was "I didn't shoot these guys, Mark." He never called me Marcus. I don't like being called Mark but I never asked him not to. I wanted to get him out of jail so bad he could have called me Alice and I wouldn't have cared. We have that type of relationship.

But I was not blindly convinced of victory. If anything, the client has no idea just how much work I put into a case he felt he could easily win on his own. He just expected everything to work out since he is innocent. But I know that actual innocence isn't a winning defense in all cases.

I didn't expect an acquittal. I could never be so cocky. But I didn't expect a conviction either.  I was confident in this case and I would try it again tomorrow. I would do it for free. I would like nothing more than to hand deliver this man the justice that has eluded him.

It's bad enough when police skip around 4th Amendment protections and then lie about it. But to have an innocent client convicted like this, it's almost unbearable. It hurts.

The lead prosecutor on this case is an older woman who couldn't be more pleasant if she was my mother. But her problem is that she believed in her case and didn't smell the lies. I don't blame her. She didn't know what I know.

She never went to where the shooting happened and talked to anyone. Sometimes prosecutors are extremely sheltered and don't believe police misconduct occurs or that State witnesses lie. They often blindly believe in their case.

I sat her down and told her attorney to attorney what really happened and how my client ended up being framed. Her jaw almost hit the floor because she knew I was speaking the truth. It was obvious. To her credit, she appeared to be startled. But there was nothing either of us could do.

Most of what I told her couldn't be brought into court. Either the rules of evidence would keep it out or the additional witnesses wouldn't come to court. This case is a perfect example of what happens when people ignore crime and don't talk to police. I was lucky I got the 2 witnesses there that I did. Even though I had to hide them in a different courtroom because they feared retaliation. They didn't want it known they came to court and said anything.

After my client was sentenced and I filed the notice of appeal, the prosecutor and I walked out of the courtroom together. I thanked her for giving my client a fair trial. And she thanked me for being easy to work with, etc.

She still had a very troubled look on her face. I wonder if she will really believe my client is innocent. And if she does, if it will bother her that she convicted an innocent man as much as it bothers me that I took part in an innocent man being convicted.

But I have grown cynical. And my faith in the system is all but eroded. So far, this case is the pinnacle in my practice of everything that's wrong with the local criminal justice system. I am ashamed I played a role in a series of events that cost a man his freedom.

Somewhere there are 2 young girls that will never really know their father and a mother that will never spend another Christmas with her son.

Well, that is of course unless this whole mess gets corrected by a reviewing court. But to believe that requires more faith than I currently have.


Thursday, November 18, 2010

Good Conduct Credit and Fuding a Prison System

In Illinois, the Department of Corrections answers directly to the governor. Thus, by and large, the prison system runs itself. They have the power to create and administer their own rules and procedures with very little oversight.

When I started in this business I was shocked to find out just how fast some people were being released from prison. It's not that I am into long prison sentences. I think there's too many non-violent offenders in prison. But as a citizen that didn't know any better, I was pretty amazed.

For a very long time, a 1 year prison sentence was in reality only 61 days. You could be home in less than 1 year when sentenced to 3 years. Therefore, a 1 year cop-out for a pistol or a little dope was pretty tolerable to defendants facing longer sentences. I have seen so many delivery and possession with intent to deliver cases (normally Class 1 felonies, carrying 4-15 years) reduced to Class 4 simple possession, which has a sentencing range of 1-3 years.

This is the type of deal making I often encounter. Deal making in criminal cases is not unique to Chicago. It's a nation-wide phenomena. Some criminal lawyers in other jurisdictions call a plea deal a settlement. I choose not to, saving the word settlement for civil cases. I call them negotiated plea deals. But it's the same thing. I really dislike a case that from day 1 is headed to a plea deal. But some cases are dogs and have to be dealt.

Typically a case is charged as a very high felony. In my opinion a lot of cases are overcharged, meaning the evidence supporting all elements of the charge is on the weak side. Or at least there's a lot of argument to be made. The State will often dangle the carrot of a reduced  charge in exchange for a plea of guilty. This keeps conviction rates high. The prison system full. And the adult probation department busy.

In other words, this system keeps a lot of people employed while largely preventing the unfortunate defendant from ever getting gainful, legal employment for the rest of their life. Talk about a circle of poverty. But that's for another post.

Earlier this year, a convicted felon who had benefited from the IDOC early release program committed some heinous crime while on parole. The press got wind of IDOC's program and a politically explosive story ran. Everyone ran for cover and the governor's office claimed they didn't know about it. Within a week, the person who ran IDOC resigned but everyone knew he was really sacked.

As part of the Illinois State Bar Association's Criminal Justice Committee, I have been asked to review proposed legislation and vote to oppose or support it. In the past 2 weeks, I have reviewed close to a dozen bills and have supported only a couple. Why? Well, they are largely political and designed to cover politician's asses, and thus a waste.

In the Illinois Criminal code, good conduct credit is described (see 730 ILCS 5/3-6). Even absent the IDOC's rapid release policy (which was not in the statute), most prison sentences are actually half the time given. We have this thing called Day for Day Credit, which means for every day of good conduct, an inmate gets a day knocked off his sentence. This is called good conduct credit. You can also get 60 days knocked off a sentence for earning a GED while in custody.

Here's an example of how this would calculate today: a defendant is sentenced to 2 years in prison for a non-violent crime. When he gets downstate they will immediately subtract the time he spent in the county jail. Let's say that was 6 months. Now the sentence is 18 months. Split that in half, and you're looking at 9 months of real time.

The more violent crimes are served at 85% of the sentence. And murders are 100%.

I never really wondered how IDOC landed on 61 days for a 1 year sentence. It does seem like a strange number since it's odd. But I never asked why it was 61 days. Last week, I might of found out why 61 was the magic number.

I have no source to prove what I was told, and I don't care enough to look for myself. However, it's food for thought. I was told for fiscal purposes, an inmate has to be in the penitentiary system for at least 61 days before IDOC is credited for having him incarcerated.

Credited by whom you might ask? You figure it out. But here are some shocking numbers.

At the close of 2009, IDOC had a prison population of about 45,000. In the same year, IDOC claims it spent $1.1 billion in operating costs. According to IDOC's 2009 Financial Impact Statement, it costs on average about $25,000 per year to keep an inmate incarcerated. This is big money.

Also in 2009, almost the same number of people were paroled as freshly locked up. That seems a bit odd to me. It's awfully convenient. And there's more people locked up for drugs than anything else (20.7%). Murder comes in second at just under 20% and sex crimes a distant 3rd at 10%.

In its October 2010 report to the Illinois legislature, IDOC expects to increase in population at a rate of 3% annually. Thus within 2 years, it's predicted IDOC will have 50,000 inmates. Assume the annual cost per inmate remains the same (it won't), that's an estimated annual budget of $1.25 billion. Compared to $1.1 billion, the increase seems negligible, but in reality it's an increase of $150 million.

I know throwing around numbers in the billions and millions is often hard to grasp. How much money is that? Here's a calculation you might understand. Let's assume you worked a full-time career job from age 25 to 65. That's 40 years.

Assume you have a high paying job and the salary is $150,000 a year for the first 10 years and then increases $25,000 per year every ten years. With these generous salary numbers you would earn $7.5 million before taxes over 40 years. Assume 25% taxes and you're left with $5.6 million. Your lifetime net income would be over 20 times less than the current IDOC annual budget.

It should be clear, Illinois spends a lot of taxpayer money keeping people in prison.

Compare these figures with the 2010 Illinois State Education budget. The 2010 budget is $11 billion with just over $3.5 billion of that coming from the Federal government. According to the Illinois Board of Education, the annual cost per student is just over $10,000.

Therefore, on an annual basis, the state of Illinois spends over 3 times per inmate than public school student. The number is really more staggering if you consider that the majority of public school funding is derived from the local tax base as opposed to state funds.

Only about 80% of Illinois public school students pass the 8th grade reading and math exams. The number plummets to just over 50% at the 11th grade level.

Am I the only one that sees a tremendous problem with these numbers?

Running prisons in the United States is big business. I think I might have written this before, but our country has 5% of the world's population but 25% of its incarcerated adults. Every 1 out of 4 adults locked up in the world is in a U.S. prison.

I think that spending tax payer money should end up bringing about a benefit to the tax payer. That's pretty simple. Ask yourself how you benefit from having so many people sitting in prison. The argument is that it makes society safer. For violent offenders, I agree with this argument. But I think the numbers would show nationwide, non-violent drug offenders make up 20-25% of state prison populations.

In my opinion, drug addiction is the real problem. Anti-drug laws are the reason drug addicts are in prison. Are the laws working? Absolutely not. They are making us spend more money in the long run. We don't need more police officers, we need less people addicted to drugs.

I wish I had the answer. I really do.

Wednesday, November 3, 2010

A Critical View of Today's America

Yesterday was election day here in the United States. I haven't looked yet, but I don't think it went well for Democrats. I didn't vote myself. In a large way, I have given up on American government on both the State and Federal levels.

The Constitution was crafted from pure brilliance. It's an amazing document. But our current government has to be light years from what the framers could have ever imagined. How did a country founded with such noble intentions end up where it is today? I will give you the answer shortly.

In my opinion, the main problem with the current government is that it's corrupted. I am not necessarily talking about corrupt politicians, although there's plenty of those to go around. The American political system itself is corrupted because money can create, alter, or block legislation. It's that simple.

I believe that the majority of Americans that get into public service via elected government positions probably do want to help and serve. But it's almost impossible to get elected without money. And unless you're just rich, donations must be sought. No one with a large purse is going to give a candidate money blindly. Something has to be in it for them if this person is elected.

This type of quid pro quo has probably been going on in this country on some level since its creation. Currently, however, it's out of hand and should be stopped.

I almost completely stopped watching the news during the run up to this election. The political coverage was the same old thing day after day. Democrats blaming Republicans. And Republicans blaming Democrats. While all this finger pointing is going on and putting Americans to sleep, big business is behind the scenes manipulating the media while attempting to gain political strength on the hill. Business as usual.

How many new pieces of legislation at the Federal level in any given year actually have a positive effect on the average American? I doubt very many. Compare that to how many help the rich get richer, be it corporations or individuals. Probably more.

Who in Washington with any money to spend is lobbying congressmen for more drug abuse treatment centers? Who is lobbying for better schools? I am sure there are some out there writing letters and perhaps even gaining appointments with their local congressmen, but are they getting anywhere with no money to spend? Large amounts of money only go into lobbying if large amounts of money can reasonably be expected from the investment. That's common sense, right?

By the last paragraph you might dismiss me as a liberal that's just whining about yesterday. I don't normally discuss my political views broadly, but I will for purposes of this post.

Let me preface by saying that normally a person's political beliefs are largely shaped by their core values that have been instilled in them since childhood. These beliefs are sharpened and perhaps slightly altered with aging, education, and real world experience. But because one's basic values are so ingrained, it's very hard to change someone fundamentally in their basic political beliefs.

That being said, I support a large number of historically labeled Democratic social programs. If you grew up with money and never needed help from the government to buy food, such a program might be easily dismissed. However, during my childhood my mother had to be on welfare for a short time. We had no money. No food. No job. I clearly remember the food stamps and what they looked like.

Thus, I support welfare programs as a means of temporary assistance. But I do not support welfare blindly for life. It breeds laziness and increases poverty. I also benefited from veteran's education programs. Naturally, I support any program that helps Americans help themselves.

On the other hand, I am a fiscal conservative and prefer a smaller, more efficient government. I think businesses should be able to run themselves without Uncle Sam getting too involved. There should be a framework of rules and regulations as is industry necessary. In other words, I think Wall Street needs oversight and a lot of it. The tire store down the street, not so much.

Clearly, I am neither Democrat nor Republican. If you blindly align with a political party 100%, you've lost the ability to think independently and are part of the problem.

It is my belief that the United States peaked across the board shortly after World War II. Since that time our status as a world super power has gradually decreased. Family and moral values have evaporated. Our global influence has been on a rapid decline in the last 10 years. The dollar has weakened. And we have had to borrow money from countries like China.

Like it or not, I believe China will be the next world super power. They are currently implementing the infrastructure to accomplish this. And their economy has shown steady growth. It might reach 10% this year, whereas the U.S. might not reach 3%. Once the Chinese government lifts some restrictions in the private sector...look out. China also claims to have generated 22 million jobs since the current global financial crisis began.

The Chinese government credits the $568 billion stimulus it injected into its economy for the growth in jobs. Didn't we do something similar? Why is our unemployment rate still  around 10%? I think it's because the U.S. had to bail out financial and insurance companies and the auto industry. What was supposed to trickle down to main street has been tied up in congress because our elected leaders are fighting over it. Politics as usual and the ordinary American is getting screwed.

The Chinese government has placed its primary focus on education, jobs, economic growth, and industrial leadership. In 2005, China awarded more than twice as many engineering degrees as the United States. And China leads the world in green energy technology.

What are we doing? Fighting over health care and gay marriage. The world is passing us by at a steady rate and our own arrogance prevents us from even acknowledging that it might be happening when empirical data shows it actually is happening.

Please don't label me as un-American. I served my country. I pay my taxes. I have done more for this country and for my fellow countrymen than most. But I am saddened because I see before my own eyes a once great country being consumed by its own greed.

The problem I alluded to earlier that has been the cause of our slow decline is simply greed. Americans want it all rather than what we really need.

We also have our priorities skewed. Shouldn't people be paid by how they benefit society? This sounds mildly communist, but bear with me. Don't teachers have a profound impact on our youth? Isn't there a compelling American need to insure more of our children go to college and earn professional degrees that can advance our country globally?

If so, then why do we pay teachers so very little while we pay a man $ millions to throw or hit a ball? Why are top researchers in universities across the country having to fight over small research grants to advance medicine while bankers give themselves $ million dollar bonuses?

Why did it take September 11, 2001 to unite this country? And why did the executive branch of the government at the time use such a profound event as a political scalpel that allowed it to run a reckless foreign policy through the Middle East? How much money did we spend in the Iraq war? $ Trillions. What did we as a nation gain from it? Little.

Some U.S. corporations, however, profited immensely from the war and we paid for it. Who were these corporations? Who were they associated with in the government at the time? In the end, who profited the most from the Iraq war? I can tell you it wasn't U.S. citizens as a whole. Go find the answer for yourself.

There is way too much divisiveness today. The prevailing Us v. Them mentality is only hurting us. The rally around 9/11 was brief because it was politicized. Americans across the country complain about lack of jobs, but as a nation we can't agree on a means to fix it. Why? Because our elected leaders are just playing tired old party politics. Every first term congressman wants one thing: a second term.

Consequently, no real progress is achieved. The politicians give short interviews dropping key words to stimulate their support base. Pundits offer commentary. Fingers are pointed. And the average American is fooled because they never look below the surface for the real story.

Have you ever tried to discuss a current political issue with someone that simply repeated what they heard on the news rather than offer their own thought? It's very frustrating, thus I don't generally discuss politics. People get way too heated about an issue they really know nothing about.

It really doesn't take much of a story to convince our citizens because we blindly believe those in charge. Most are too easily swayed by what they hear on TV. This has to stop. Elected officials have to be challenged and called out, not reelected. Party politics has to end and Americans have to get educated and think for themselves.

It would also serve us well if the average citizen started thinking every now and then about what's best for America rather than what's best for themselves. Too many people think they're entitled to something. I say you're only entitled to opportunity. It's up to the individual to use that opportunity to its fullest. If you sit on your ass all day, you deserve to be poor. If you work your ass off all day, you're entitled to a living. Easy.

If you're an American and don't fit the profile I have described here, I mean no disrespect. I wrote in some generality here based on my own observations and thoughts. But I don't think anything I suggested is impossible to reasonably support without much effort. But, they are my beliefs. Whether I am factually accurate or not either remains to be seen or cannot be ascertained. If you hold contrary beliefs, that's your right. And I respect that.

On its face, the idea of being a politician is appealing to me. I have always felt the need to serve others. I like helping people. But I am not willing to sacrifice my integrity to get my foot in the door and keep it there.

I just went and peaked at CNN. It's funny but the Republicans that won yesterday are saying the same types of things the victorious Democrats said in 2008: The people want their country back. They want jobs. They're tired of the sluggish economy. They're fed up.

We just changed the make-up of Congress 2 years ago. And it didn't fix much. Who's to blame? Everyone is to blame. Both parties. The White House. All of them. The Democrats had control of the House, Senate, and had a Democratic President in the White House. What do they have to show for it? A health care bill that no normal person can make sense of.

I don't care who you elect. If the system is broken it doesn't matter who's in power. Nothing is going to get done.

I say fire them all. Start from scratch. And ban lobbying. That would be a good restart. Do some research. Find out who spends the most money on the hill and ask yourself if you're in anyway benefited. Due to recent laws, there's a lot of transparency when it comes to lobbyists. The data is there, but you have to look for it.

See who is spending the most money and ask why?

I can almost guarantee that it's to make more money. Is this greed at work or just corporations answering to their shareholders? Is there really a difference? Opinions vary.

I will not turn into an extremist, call for the overthrow of the government, and join a militia. While that may, in some corners, be considered patriotic, I think it's misguided and futile. The only way the government will change is if the people demand it by refusing to accept the status quo.

The notion that special interest has corrupted American politics is not new. But I fear that the majority of Americans aren't even aware of it's existence and how toxic it is.

We need more awareness, not more apathy. That is ironic for me to write since it was my own apathetic attitude that prevented me from voting yesterday. But I see no logic in taking part in a broken system.

I am not afraid to call myself out, however. But I am so tired of these people on TV claiming they are speaking for the American people. Do they really speak for you?

They don't speak for me, thus I write separately and respectfully dissent.

Monday, November 1, 2010

My Recent Absence Explained

Some of you that follow me on Twitter have expressed some concern because I have been absent for the last week. A couple of you have emailed me directly or sent direct messages to insure I am still alive. Even my mother has been worried since she tracks my days via Tweets. If I don't Tweet, she thinks I am dead.

I am alive. That much I can vouch for.

So what's going on? In keeping with the spirit of openness as found in most of my blog postings, I will be completely honest with those that want to know.

The main problem is that I am injured and cannot run. Some of you might that's really lame. But running is how I handle work and life stresses. It's running that allows me to cope with the daily grind that is my small, little law practice.

It's almost as if running creates a barrier that keeps sadness, frustration, anxiety, despair, and depression at bay. Remove the barrier and it gets ugly. I am not sleeping well. Case after case consume my consciousness. I have small panic attacks thinking about the enormity of a couple of them. I have to calm myself down and break the case down into small manageable tasks.

As soon as I am relaxed about case A, case B walks in the door and the process begins again. Usually by 4:00 am, I shut down for a couple of hours. But after a week of this, I was a mess. I am now taking prescription sleeping aids, though it's only been since Friday. It's also during times like these that I have very violent nightmares that always somehow tie in with work.

Another component in play is lack of sunlight. I suffer from fall and winter blues due to lack of sun. Almost every summer afternoon I was running shirtless at the lake soaking up sunlight. In my world, that is a perfect afternoon. I am really that simple.

My favorite thing to do this summer was a mid-afternoon 10 mile run followed by 15 minutes on my patio. I would sit there dripping in sweat, stoned on runner's high endorphins slowly sipping Gatorade and reading my Twitter stream on my phone. Sadly, that scene will not return until at least next May. Ugh.

All of this stuff together has dipped me into a mild depression. I have been here before. And typically I withdraw from social activity until I feel better. As lame as I feel about admitting this, Twitter is pretty much my social universe.

It's with my Twitter family that I share career successes and failures. A fellow criminal defense attorney in Miami, who shall remain nameless, recently wrote that Twitter is a conversation. I agree. Or at least that's how I use Twitter. I don't market myself on Twitter or really on the internet for that matter. I have a website but I don't think it draws clients.

Twitter simply allows me to communicate with other attorneys across the country and most of them are also in the criminal business. Some of them have blogs that I follow. We share war stories. There is also a small number of law students I chat with. And a few other random people who are interesting to me for one reason or another. Journalist Jake Adelstein , being one of them.

The last time I had a group of friends I hung out with was when I lived in Austin immediately before law school. Since then I am changed. My prolonged illness during law school turned me into a pretty quiet person. I am ok with being alone. Sometimes I prefer it.

Besides my mother, there's only one person in my life I am close to. I am not a social retard, however. I make small chat with people I encounter during my work day: clerks, deputies, clients, judges, attorneys, coffee baristas, etc. I am friendly and smile often. Anyone that sees me with any regularity will tell you I am about as nice as they come.

But I am just not the type to go hang out these days. I don't drink much and I prefer to watch sports at home. Twitter happened by accident and slowly grew into a social network of people that I can communicate with on my terms. Well, mostly. I have directly helped other attorneys via Twitter. And other attorneys have directly helped me.

I think it's safe to say that my small Twitter community of fellow criminal defense attorneys helps each other indirectly every day by being supportive. We all express sympathy when one of us has a bad day and we join in the celebration of victories no matter how small. To keep things light, we often tease and pick on each other.

Rather than be a negative Nancy because I am not feeling well, I chose to leave the party for a while. If I have nothing positive to offer my followers, than I am pretty much useless to those that have some token of interest in me. And if you read my posting from this morning, it's clear I am not a real positive person today. 

I am feeling pretty damn beat up in all honestly. The work is getting to me. I admit it. The stories are extremely sad and real justice is way too elusive. But I am taking all reasonable corrective measures. I am still working out daily. I am hitting the tanning booth a few times a week to get some fake sun (and yes, this does help). I am eating. I am taking medications to help my sleep and my mood.

Naturally, I am still working. But I got the crap beat out of me last week in court on Monday and Tuesday, which just made things worse. Everything I touched turned sour.

I have always believed that a person's true character can only be measured in a time of adversity. It's how we deal with the bad times that count. Easy living is just that. I was trained in the military to keep driving on no matter what. Keep on, keeping on. That's my life. I just keep going.

We criminal defense attorneys swim neck deep in an ocean of adversity. It's part of the job. So, don't feel sorry for me. I chose this profession. I asked for this. And I got it. But I admit, in some ways it was more than I bargained for. I had no idea it was going to be this sad and frustrating. But on the other hand, I had no idea it would feel as good as it can when things go well.

It's something special when the jail doors are sprung open as a result of my work and someone dearly missed is returned to their family. It's an amazing feeling. And probably why I do this. It's nice to play hero every now and then. I admit it.

Keeping things in perspective, I have about 30 files of people who have much, much bigger problems than myself. Thus, I won't be sitting around whining because I don't feel really well right now.

So for those of you who did express some worry or noticed my absence, I say thank you from the bottom of my heart. I am ok. I will be back soon. It's all good.

Besides, there's nothing that a week in the Caribbean can't cure. Or at least mitigate the hell out of.



Sad State of Affairs

Recently it appeared that shootings here in Chicago had slowed down. Or at least the reported ones anyway. I was also seeing less arrests for aggravated battery as well. This is what a suspected shooter is initially arrested for. If indicted later, it's usually for attempt murder.

A reduction in violent crime usually arrives with cooler weather. Summer is long gone. But it's still warm enough to be outside. 

This last weekend saw the violence return. And it was all over the city. Well, mostly. I think no less than 30 people were shot this weekend and about 7 of them died. These were just the ones reported. From past discussions with area detectives, I know that usually only 50% of violent crimes get any press. An Area 2 detective (Calumet Area) told me they catch about 6 bodies on a warm weekend. Area 1 and 5 have to be similar but I bet Area 5 (West side) has to get more.

We also had some fatal car accidents. And one 23 year old teacher fell to her death while trying to slide down a stairway at a downtown Hilton hotel before a Halloween party Saturday night.

The families of the murdered will get no compensation. The murderers may never be brought to justice. But I have a feeling the family of the deceased teacher will find a lawyer who will sue Hilton for having unsafe stairways in their hotel.  But I am not commenting on either situation. Perhaps the stairs were indeed unsafe. I don't know.

Is any one death more tragic than the rest? I think everyone who died was under 30 years of age. A couple were even teenagers. Sad all the way around, I think. But I know that some people will think the death of the white, pretty, blond teacher with a great smile was a greater travesty. She was obviously college educated and employed. Surely she's worth more than some 19 year old South side black male with no hope or future, right?

The problem is that, somewhere, thinking like this lurks. And it's not widely scattered. It's real. Just as racism is real. And it scares the hell out of me because people who think like this have the right to vote.

Meanwhile Chicago police made 35 South side arrests in a narcotics enforcement sweep. They also confiscated 18 guns, $18,000 worth of narcotics, and $11,000 in cash. Go Blue. I wonder if I will be hired to represent any of the 35 recently arrested? Or if I might be hired to defend someone arrested for one of the weekend shootings or murders?

How many illegal guns are here in the streets of Chicago? I bet the number would blow me away. Have you ever heard how many insects could be found in a square mile of dirt? Isn't it like 4 billion or something ridiculous?

How many illegal handguns are in the city blocks between Central Park & Austin from East to West and say Jackson & North Ave from South to North? It has to be in the thousands.

The only difference I see between our current city streets and the Old West is that way back then, guns were not often concealed. They were carried in holsters on the hip so everyone could see it. It was cowardice to shoot a man in the back. But some men were still blood thirsty. Not much has changed.

Neitschze wrote that our violent dreams are a reminder of our violent past. But he was speaking in terms of human social development, not about an individual. Thus, violent dreams were merely a relic of the human condition thousands of years ago. I think logically, he felt humans had become more civilized over time. I agree. Mostly.

I don't know why some people are just violent. I was never a kid that liked fist fights. Getting punched in the face hurts and punching someone with a fist hurts the hand. Sure, I was in fights as a child and young adult. But I never enjoyed one.

I have known people who love fighting. And I tried to never go out drinking with them because a bar fight was never too far away. I didn't go to bars to get in fights. I went to talk to girls. Duh.

Though our legal system discourages violence, our social system applauds it. Think about that for a minute. Think about movies. Think about video games. Think about music.

You might think I am going to go off on some purity crusade that would make a Quaker or Mormon proud. But you're wrong. I am just calling an Ace an Ace. So much of American culture is about hurting and/or even killing others. As a country that's not terribly old, we have a violent past. Our country was established by way of violence. And clearly, we like a good war every 10 years or so.

When I was a kid we had video games like Pac Man and Asteroids. There was no simulated death via video game. Killing humans was not entertainment. Movies were violent, however. The Taxi Driver was about as violent as it got when I was a pup.

But our music certainly wasn't violent like today's. Why are we celebrating being a Thug? Why was 50 cent worshiped because he had been shot several times and been to prison? Why did we as a country collectively allow this to be socially acceptable? Why are suburban white kids talking like they're black and from the inner city?

Do black people as a whole get royalties from white impersonation? No. What happened is that once again, blacks, in part, were exploited by white people for financial gain. The record companies recognized a huge market for hardcore hip hop. And I have been here for the entire show.

I remember hearing NWA's Straight Outta Compton for the first time. It was 1989. I was in the Army stationed in Hawaii. I met a couple of girls from Los Angeles in Waikiki one day. They told me about this new rap group and wanted to play me the tape.

I couldn't believe what I heard. Fuck The Police. Really? No, they didn't say that. Oh yes, they really did say that. A couple years later, Ice T came out with Cop Killer. That one caught some attention. And I think it was eventually pulled from future pressings of the album.

But clearly this new rap was a bit different from Run DMC and the Fat Boys. These guys were rapping about being armed and pissed. Not a good combination. The lyrics were so real. Drug addiction, welfare, police brutality, murders, gang life, no education, despair. It was things I knew about but had never heard put to music before.

These artists had something to say and it was real but very sad. Instead of society as a whole attempting to help people who experience the type of life that spawned such lyrics, some made money off of it.

About the same time Straight Outta Compton was being made, the movie Colors was released. Produced by Dennis Hopper, it starred Robert Duval and Sean Penn as Los Angeles police officers working in a gang enforcement unit. It largely introduced America to the Crips and Bloods street gangs. It was a controversial film that I think was largely ignored. Most of middle America thought the violence was way overplayed in the movie. Ironically, the violence was actually underplayed. The streets are way worse than that film portrayed.

The condition of the inner city black male was exploited for profit. But, at the willingness of the black inner city artists. They got paid too, but no where near as much as the record companies. Yes, the artists were willing participants in the exploitation of their brothers.

Overnight gangsta rap was IT. I remember a Christmas from my past so clearly. It had to have been 1993 because Dr. Dre's The Chronic had already been out for a while. That was released in December of 1992.

I was in Athens, IL. It's outside of Springfield. Though Springfield is the state capital, it's pretty hick compared to Chicago. Athens is even more white bread, if that's possible. I had a young cousin living in Athens who would have been about 16 or 17 at the time. I hadn't seen him in a couple of years.

I walked into his room. My other cousin was in there too. He was the same age. On the wall were posters of giant Marijuana leaves and hip hop artists like Dre and Snoop Dogg. I found it a tad disturbing, but I had The Chronic and liked it. I am not a hypocrite.

When these kids opened their mouths, however, I was stunned. All I heard was "Nigga" and "Bitch" sprinkled between "F bombs". They were wearing pants that were pulled down to their knees and I could see their boxers. They looked ridiculous and sounded even worse.

I grew up in a black neighborhood. I had been around black people my entire life. I had more black culture instilled in me than some blacks. And here were my two ignorant white cousins who would never drive a car through my old neighborhood, acting like hardcore street thugs.

After about 5 minutes, I turned around, walked out, and shut the door behind me. I was completely disturbed. I had wanted to smack the crap out of both of them. More than once each too. Though neither of those cousins is dead or in prison, they have both had their share of run-ins with law enforcement. Whereas myself, who grew up in crime-ville, has never been arrested and has had 2 speeding tickets in 23 years of driving.

From there it just got worse. Hip hop became mainstream and the artists just got more Thuggish. Then the East Coast/West Coast crap started. Tupac was murdered. Biggie Smalls was gunned down. The Source awards got nasty in 2000. And even Jam Master Jay from Run DMC got killed in 2002. 

The two main record labels producing hardcore rap and central in the West/East rival, were Suge Knight's Death Row Records and Sean "Puff Daddy" Comb's Bad Boy Records. Both Knight and Combs are black. Knight went on to go to prison. Combs is in movies. So it wasn't just whites profiting off of blacks. Brothers were pimping brothers and getting rich in the process.

What happened to Atlantic and Motown?

All the while mainstream American youth is gobbling up this stuff unchecked. People in the music business got richer and richer. But inner city blacks, from where all of this originated, remained poor, disenfranchised, and stricken with violence.

What kind of world do we live in where it becomes acceptable and cool to mimic and even profit off those that have it the worst? Why are children across the country, of all races, idolizing people who couldn't get a job at McDonalds? Where has our sense of value gone? Have our morals evaporated suddenly?

What the hell is going on?

If anything the thug/gangster culture has exposed the country to the real problems of many inner cities. But who is doing anything to solve them? No, we just keep producing more videos with more rappers with more gold teeth and more tattoos and more scars and more money and more women and more felony convictions.

But the music is so watered down and uninspiring. I like old hip hop when the artists had a message. And the message was on point and relevant. Now it's just about money, the great spoiler of genuine noble intention. 

In a very roundabout way, this brings me back to our street violence here in Chicago. If a hugely profitable market could be created by producing commercial media based on inner city plight, why can't we fix it?

I don't think the kids stuck here in the streets think they have a cool or glamorous life. Most of them carry guns to keep from getting murdered. And if you have mouths to feed and slinging dope is the only way to earn money, is there really a choice?  A man does what he has to do to handle his business. And sometimes what he has to do runs afoul of the law.

I am not giving a blanket pass to people I work for. But I will be damned if I just label them all as lawless villains who have no respect for authority. My work is extremely sad because I see the tough choices so many of my clients are forced to make. And too often I have to admit to myself that, if in their shoes, I probably would have done the same thing. There is no right or wrong. It's which shade of wrong do you prefer.

The real problems are drug addiction and poverty. One feeds the other in an endless cycle that effects the community as a whole. Until those that control the power of the purse really make an effort to relieve these problems, there's no end in sight. I will have a job forever.

And that, is a sad state of affairs.


Wednesday, October 27, 2010

Lawyering for Liberty

Before I began practicing in criminal court, I was a civil attorney. Most civil attorneys fight over money. Personal injury, tax, intellectual property, probate, commercial, contract, divorce, medical malpractice, workers' compensation, etc. At the end of the day, it's about money.

One party is trying to get money and the other party is trying to prevent that from happening. Or at least attempting to minimize how much money the client has to pay the other party.

In some criminal cases, money is an issue too. This is especially true when forfeiture comes into play. But predominantly criminal cases are about liberty. In felony court, the State is usually trying to send my client to prison. I try to prevent that or minimize the amount of time. See the corollary with the preceding paragraph?

As a civil lawyer, I could never really get my heart into my job. Why? I couldn't identify with any benefit I ever provided to a client. I was in workers' compensation defense. If I handled a case well it meant the client had to shell out less money.

In other words, I worked for the benefit of a corporation's bottom line. Or an insurance company, but you get my meaning. I spent my entire work day chained to a billing clock that measured in 6 minute increments. And I had to account for all of it. Anything I did for the benefit of a client had to be accounted for and billed properly. I didn't like that.

Identifying with my criminal clients is much easier. If I have a client facing 10 years in the joint, that gets me fired up. I was in the Army. I know what it's like to lose personal liberty. Of course prison is much more extreme. But I had just enough taste of it to know how bad it is. Or at least I imagine how bad it is.

I have written in the past about how much more civil criminal court is compared to an average civil court where money is in dispute. I have seen opposing counsels on civil cases screaming at each other. In court. Like children.

I have gone running with a prosecutor. I have had drinks with a number of them. When we see each other in the court house we exchange pleasantries. There's really only 1 prosecutor in the entire Cook county that ever got nasty with me. She apologized the next time she saw me, much to her credit. She still doesn't like me though.

There's simply not enough of us lawyers in the criminal business to make enemies. Why? You never know who's going to end up a judge. Also you don't want a reputation as someone that's an a$$hole. No one does those folks any favors.

We are all expected to be professional, respectful, and courteous. I don't have a problem with that. A few do, however. The a$$holes.

When I first started handling felony cases at 26th & California, I introduced myself to a judge. I asked for advice in appearing in his court room. He told me to make sure I always get along with the State. That was sound advice.

I recently watched the first episode of the new NBC series Outlaw. Jimmy Smits plays a former Supreme Court justice who left the court to make a difference. In the episode he takes the case of a man who was horribly injured due to a design and manufacturing defect in a car.

He initially settles the case for $10 million. That took about 30 minutes. Then his conscious gets the better of him since part of the settlement agreement is that the cause of the accident could not be disclosed. In other words, the car manufacturer was trying to sweep their serious safety problem under the rug.

Jimmy's character, Cyrus Garza, then does something unbelievable. By his own actions, he gets the settlement offer retracted by intentionally leaking it to a reporter. He knew it would happen. In Illinois (and I am sure every other state), that could get an attorney disbarred. But I digress.

Of course when he tells the now dead client's daughter the settlement offer was yanked from the table, he fails to mention his obvious role. And this guy sat on the Supreme Court? Of what? Candy Land?

The case ends up going to trial. The plaintiff is awarded a huge judgment. And at the end of the episode attorney Garza looks like a crusader for all things just. Oh I forgot to mention that an associate from Garza's office goes to Detroit to get hired on by the car manufacturer. Once hired, she hacks into the CEO's email account and uncovers incriminating information.

Hmm. That doesn't pass the sniff test either. Does it?

In this one episode we see all of the lying, cheating, and stealing which fuel lawyer jokes. This is TV. And it's clearly not real or even close. For one you could never get a civil case to trial and have a jury verdict in a mere 60 minutes. Try 60 months. Maybe.

I cannot stomach television courtroom dramas because of how silly and unreal they really are. The irony is that, but for television courtroom dramas, I wouldn't have gone to law school. Being a lawyer looked cool on TV.

There's an article in this month's ABA Journal about why it's great to be a lawyer. Even before I graduated from law school, I met scores of attorneys that claimed if they had to do it all over again, they would have picked another profession. Today I hear of law students complaining because the job market is to bleak. And they're right.

Recently I have become somewhat disillusioned about my work. I've had trouble getting paid. Problem clients. Really difficult cases. Rapidly slowing new business. It's just been bad. But reading about how others view their roles as attorneys has lifted my spirit.

I am fortunate enough that in my practice, I get to help my client in a very one on one sort of way. And if his situation is bettered, it's a trickle down benefit to his family. My job is very people oriented. It's up close and personal. Of course, the flip side is obvious. When things don't go well, there's people lined up behind my client that are going to be adversely affected. To date, I have found it impossible to shield myself from, at times, feeling like I let a lot of people down. I have a mother. And I don't like to see mothers crying. It gets to me.

When the rubber meets the road, however, I am the only person in the courtroom working on my client's behalf. Innocent until proven guilty is an antiquated, idealistic notion that our criminal justice system was founded upon. In the Chicago felony courtrooms, however, it no longer has a place. Everyone thinks the defendants are guilty and that's how they're treated. Well everyone except his lawyer. Some of the time.

Every prosecutor I have ever spoken to about every case I've handled functions from the presumption my client is guilty. They refuse to think otherwise. I once had a very serious case where my client could have been death penalty eligible. I knew he was innocent like I know my own name. At his arraignment, I told the lead prosecutor the cops got the wrong guy. He nicely brushed it off. For the next 6 months, I was on a quest to prove my claim. And I did. Case dismissed on the day of trial.

On that day, it felt GREAT to be a lawyer. But I wonder if every lawyer out there would have believed in his client's case. Would they have directed the investigation as I had? Could that case have gone to trial and the defendant been convicted? Sadly, it's very possible because after all, the system assumed he was guilty. I am not Joe Super Lawyer but I believed in my case. I kept digging until that belief was justified. And justice prevailed. I just wish it happened more often.

The moral to the story is that, at times, I stand as the only obstacle between my client and a serious loss of liberty. For me, it simply doesn't get more real. Standing between my client and a loss of some money, however, just never took root.

Withstanding that, I do not dislike civil attorneys nor am I dismissing their work. I am also not claiming criminal attorneys are in any way superior to our civil brethren. There are lots of types of law and lots of types of lawyers. Different strokes for different folks. I've met many attorneys from across the board who have their heads on straight and do honor to the bar.
At the end of the day, however, the client's interest must come first.

Thursday, October 14, 2010

Air Jordans to Die For

In Illinois we have three basic types of robberies (not including car hijackings). Simple, aggravated, and armed. Simple robbery, also commonly called strong arm robbery, is taking property from another by the use of force or threatening the use of force. An example would be an offender that grabs your arm and takes your purse. Simple robbery is a Class 2 felony and can carry 3-7 years in prison.

Aggravated robbery adds the element of threatening the use of force while either saying or acting as if armed with a deadly weapon. An example is sticking your finger in a victim's back pretending you have a gun, saying it's a gun, and then taking their wallet. Curiously it's also aggravated robbery to make someone ingest a controlled substance without their consent and then taking property from them. I have yet to see a case dealing with the later description. Aggravated robbery is a Class 1 felony and can carry a prison term of 4-15 years.

Both simple and aggravated robbery are probationable.

Armed robbery is committing robbery while armed with a dangerous weapon. From my reading of the law, the weapon need not be used or displayed during the crime. Simply possessing it while committing the robbery is enough to bring the crime under the armed robbery statute.

What's a dangerous weapon? That should be pretty obvious: guns, knives, swords, brass knuckles, ninja swords, chainsaws, and bludgeons. What's a bludgeon? A bludgeon is anything that one could use to hit a victim with and cause serious bodily damage. Thus, it seems arguable that one could commit armed robbery with a large flashlight. Perhaps a bowling ball too. If you could bludgeon someone to death with it, it's a bludgeon.

Armed robbery is a Class X felony. It's not eligible for probation and carries 6-30 years in prison.

In Illinois we have sentencing enhancements for armed robbery cases where a firearm was used. And these enhancements are stiff.

Merely possessing a firearm during a robbery adds 15 years to the base felony sentence. Not up to 15 years. 15 years. It's also mandatory. The judge has no choice. The statute has the language "shall be sentenced {to an additional period of 15 years]" in it. It doesn't read the defendant may be sentenced, it reads shall be sentenced.

At trial if the State proved the robbery and the gun, the defendant would get an automatic 15 years added to the Class X sentence. Thus, the range would be between 21 and 45 years; 6-30 + 15 = 21 to 45.

Discharging the firearm adds 20 years. The State now has to prove the robbery, the gun, and that the gun was fired. I just about a case down in Peoria county where the offender shot the gun at a wall to show the victim it was real. He got 26 years.

25 years are added if the offender shoots the gun and it hits anyone and causes great bodily harm or worse. It's not even the victim that need be shot. If an innocent bystander got hit, 25 more years. In this scenario, the State has to prove the robbery, the gun, that the gun was fired, that the bullet struck someone, and the bullet caused great bodily harm, permanent disfigurement, or death.

Hypothetically, one could set sentenced to 55 years in prison for armed robbery if the offender shot someone. In comparison, First-Degree Murder carries a prison sentence of 20-60 years. But much like armed robbery, the gun enhancements apply.

As you can see, committing armed robbery with a firearm is no joke. It can be punished harsher than murder.

In the last year, I have handled or am currently handling at least 15 armed robbery cases. All allegedly involving firearms. Sadly, the average age of my client is about 17-18. What baffles me is how silly the crimes are. Only 1 of my cases allegedly involved the robbery of a commercial business where one might expect to get some money. No, most of mine allegedly happen on the street and for things like Air Jordans, iPods, cell phones, and jewelry.

Is a pair of new Air Jordans worth 21 years in prison? This might make you laugh, but in 1 of my cases the victim allegedly told the offender he would have to kill him if he wanted the shoes. This fact pattern was read into the court record yesterday at my client's plea hearing. I couldn't make this stuff up. 

There isn't one material possession I own or could ever own that would be worth my life. And this kid was ready to die over a pair of Nike basketball shoes.

Welcome to my world. Pull up a chair. And have a seat.


Monday, October 11, 2010

The Chicago Marathon 2010: 100% Pure Misery

As some of you know, yesterday morning, 10.10.10, I raced the Chicago Marathon. Actually raced isn't the best word. I survived the marathon. There, that's better. This wasn't my first marathon but it sure felt like it. Or maybe how a first marathon is supposed to feel. But I first ran this race back in 1996 in 3:09. That was my first marathon.

I have been attempting to break the 3 hour mark for the race. Not necessarily here in Chicago, but any marathon. However, Chicago has a very flat course and it's widely known to yield pretty fast times compared to other races.

If you have read prior posts on this topic, running a sub 3 hour marathon is my road to the Boston marathon. The last time I attempted the marathon distance in somewhat decent shape was in 2008 where I finished in 3:04 on a warm day. That year I was coming off knee surgery, and blah, blah, blah, I wasn't near 100% on race day.

2009 was a bust due to injuries so I jogged it in about 3:49 (I think). 2010 was supposed to be a "no race" year. I just wanted to be able to run steady this year without an injury that forced me to sit for a few months. After all, I just like to run.

Of course by early summer when I wasn't injured and could feel good running fitness coming on, the idea of a fall marathon popped in my head. I should have ignored it. Completely. But I late-registered for Chicago through a charity that I still need to raise money for or end up paying the balance of the donation goal myself. If you have it in your heart to donate even $10, please click here and do so. Thank you!

I ran very well in July and August, near 250 miles per month. I was getting fast. I was doing my long runs on Saturday mornings and they were easy. My weekly mileage had slowly increased up to 55. I was doing everything right. By the book.

I did a half marathon on September 12 as a tune-up race. And I wrote about how that race didn't go as well as expected. I ended up severely injured afterward, but still ran a 1:28. For the next month, almost all of my running was a joke. I took almost 2 complete weeks off and cross-trained at the gym. I also lost some extra muscle weight I didn't need.

The first week of October I was able to run again. Well, sort of. I did a few pretty decent workouts where I got my speed up. Last Sunday (October 3), I ran 12 miles. It felt ok. Going in to yesterday's race, I knew a sub 3 hour race was probably out of the question since I ran so little for the preceding month. I could feel I had lost sharpness.

Was a 3:05 possible? How about 3:10? Surely a 3:15 was almost a guarantee, right? Wrong.

Race morning started out pretty normal. I was up at 4. I drank a couple of cups of coffee. I ate a plain multi-grain bagel. I drank water. I drank some Gatorade. But not too much of anything.

The problem, however, was that my left foot and leg hurt. I developed some random plantar fasciitis back in July. If you don't know what that is, look it up. But it's a very painful condition on the bottom of the foot sort of in the arch area but reaches back to the heel.

I had never had this type of injury before. I took a day off in July when it happened. I ran shorter distances. I iced it. I stretched it. But I never let it heal. I figured out how to train with it. What I didn't know was that I was changing how I ran with my left leg to compensate for the injury, which in turn caused injury further up the leg towards the knee.

I taped my foot. I took some ibuprofen. Actually, I took a lot of ibuprofen and headed down to the race. I had the usual pre-race jitters in my stomach. I needed to have one last sit-down in a porta potty before the race. This is normal.

But the potty I went into and sat down inside of, was out of toilet paper. Oh no. Not good. I did find a plastic bag on the floor and made due with it. But you can imagine how nasty that was. As it turned out, I think that was an omen of more shit to come. Literally.

Because I ran a 3:04 in 2008, I was assigned to the first start corral, A. Almost 40,000 start this race. It can take 30 minutes for the folks in the back to reach the starting line. Being able to be up front only 30 yards back from the start is nice. Corral A is right behind the elite runners and it takes less than 20 seconds to reach the start line.

The race started. I took off. Immediately my left leg starting screaming at me. I wanted to pull right off the course and call it a day. I knew it was going to be bad if I kept going, but had no idea just how bad it would really get.

I kept going. Went through the first mile in 6:51. I felt pretty good because I was ignoring the leg. The first 9 miles were all under 7 minutes. I was on 3 hour marathon pace. I felt pretty good. I was relaxed. I wasn't breathing hard. My pace was where it needed to be.

But around mile 9, I started to slow down. I remember the exact step it happened. I ran my first mile in over 7 minutes, but only by a couple of seconds. I averaged 7:07 for the next 3 miles, then 7:26 for the 3 after that. At this point I was thinking maybe a 3:10 race might be doable.

But after I hit the half way point in about 1:33, it all went down hill from there. I got sick. For the first time in any race, I got sick. I had diarrhea. I was vomiting. My legs stopped working. And I did something in a race for the first time: I took walking breaks.

Due to the severe cramps I was experiencing, walking was the only way to keep me from shitting my shorts. A mile later I hit a porta potty. Sat down. Shot it out. Kept on running, albeit slowly. Then the vomiting started. Then more cramps. Short bought of walking. Slow running. Extreme cramps. Another bathroom break. Repeat.

I know of other runners who got sick during marathons. But it never happened to me. I never considered the possibility. I don't eat strange foods the 2 days leading up to the race. No grease. I eat mostly grains, such as wheat pasta and bagels. I really don't know what happened. Don't have a clue. 

My body was doing everything possible to convince or even force me to quit and abandon the race. But my mind wouldn't buy it. Pride apparently was stronger than physical misery. And so this is how the last 10 miles of the race went. Utter misery. I eventually slowed to 11 minute miles because I was walking here and there. The last 2 kilometers of the race was at a per minute mile pace of 13:24. Ouch.

But it wasn't just me having a bad day. I had never seen so many seeded runners walking the last half of a marathon. A lot of people had a bad day. I usually see half a dozen or so seeded runners that went out too fast walking part of the last 5-6 miles. Yesterday, the walking wounded started appearing during mile 14. And I soon joined them.

It was warm and sunny. Some that had a bad day will probably blame the heat. I am not sure if the weather conditions played a part in my failure. It's possible. But I trained this summer in extreme heat when indexes were in the low 100's. I am not sure what the temperature was during the last half of the race, but it had to have been high 70's to low 80's. That is not ideal marathon weather. I simply don't know what happened to me. I am clueless. 
The last 2.5 miles of the race is on Michigan avenue, headed back towards downtown from 35th street. Michigan avenue was total carnage. People were walking. People were off to the side, laid out like dead fish being treated by EMT's. It was almost surreal. Most of the time by that point in the race, my brain is a little soft due to lack of carbohydrates. But not yesterday. I never experienced any head fog. I was just sick.

I knew where I was. I knew my name. And I knew I wanted to die. I have never felt physical pain like that in my life. My legs were hurting in areas for the first time (and still are). Coming down Michigan the spectators were yelling "you're almost there, just 2 miles to go!"

That may have been true, but it was the longest 2 miles of my life. And ones I never want to experience again. I hit the turn at Roosevelt to make my way up the little hill at the end. When I reached the top, another cramp hit. So I walked the final corner to the finish line. Then I shuffled the last 100 meters and finished. Without soiling myself. That was a victory in itself.

Several people were being put into wheelchairs and taken immediately to a medical tent. I heard ambulance sirens everywhere. And soon I saw runners on gurneys being wheeled around. It wasn't pretty. But I kept walking. I got my medal. Let out a tear or two. Grabbed some Gatorade. And walked damn near a mile to grab my gear bag. Grrrr.

I had brought my headphones with me to listen to music on the train ride downtown that morning. I powered up my iPhone. Put the headphones in my ears and started playing Dark Side of the Moon. The pain started to ease ever so slightly. Then I had to walk another mile to get to the Adams/Wabash train station so I could get home.

This race proved to be the most difficult physical test of my life, including the Ironman triathlon. It was 100% pure misery. At no time was it fun. At no time did I enjoy it. I wanted to quit every step of the race.

Years from now, when I look at the race medal I won't remember it as the race where I broke 3 hours, since I didn't. I will remember it as the race where I found out about myself. And learned just who I am. I will be reminded that in the worst conditions I can imagine, I refused to quit.

Good marathons are easy. They just happen. You're ready. The conditions are right. And you do it while never feeling horrible. Sure it's 26.2 miles, but when you have a good race, they are not that bad. Yesterday was the exact opposite.

I am currently registered for the White Rock Marathon in Dallas on December 5. At mile 20 yesterday, I swore off that race. Entirely. No way I am doing it. It can go to hell.

24 hours later my legs are busted and sore like nothing I can compare it to. I am walking like an old man with polio, but I can eat and appear to be digesting properly. I am sure yesterday was just a fluke. But it was a humbling experience on many levels. The gimpy lower leg and foot weren't the reasons I had a bad race.

No, I think the Marathon Gods decided to remind me taking 26.2 miles for granted is foolish. I had lost respect for the distance. An act of arrogance I shall never repeat. The price was too great. I had no business starting the race given my condition. And my hubris cost me. Now I sit and recover. Tomorrow I will hurt less. And the day after, even less. Within a week, I will run again.

No matter what happens from here, yesterday's race on 10.10.10 will probably be my proudest race accomplishment. I never gave more of myself to accomplish one singular feat in my life. The Ironman triathlon took me just under 12 hours to finish, but was no where close to as miserable or painful. Everyone who does this sport eventually has a bad race to some degree. I sure hope yesterday was mine.

There are pieces of me littered throughout the last half of the Chicago Marathon's course. And not just me, thousands of people lost parts of themselves out there yesterday. The empty Gatorade and water cups have been swept away. Traffic is again moving along the course like any other Monday. But the memory of what happened out there is burned into me, never to be forgotten.

For to forget, would only set myself up to be reminded. Don't really want that.

Bring on Dallas.

Saturday, October 9, 2010

My Love of The Work

A couple of weeks ago, I wrote about how great Public Defenders are. I argued that given all they tolerate in performing their job, they must do it for love of the work. Deep down inside, they must be driven by a desire to help people in desperate need.

Now, I turn the lens around and look at myself and other Chicago criminal defense lawyers. I don't know how other markets operate. I don't know how much a lawyer in Dallas can charge for a drug possession case. I don't know the going rate for a murder defense in San Francisco. But I know Chicago. And I know that none of us CDL's are rich or even getting close.

In fact, we Chicago CDL's practice in the armpit of the law. I am not trying to make us sound exclusive or elite. Far from it. I imagine in other areas of the country where street crime is a problem, the job for a defense attorney is quite similar.

In an economic time where a lot of attorneys I know have expanded the types of cases they accept, I have done the exact opposite. For whatever reason, I have practiced myself into a corner limiting myself to less than 10 crimes I handle. If you read here, you know what they are.

The people getting arrested for the crimes I handle do not have a lot of money, thus I can only charge so much. I quickly learned where the market is and adjusted my practice accordingly. My overhead is extremely low.

Whatever notions or mis-perceptions I had about lawyers as a child are long gone. In the game of Life, the attorney's salary is second to only the doctor's. Growing up, I assumed all lawyers were rich. But I know union workers that make much more money than I do. And they have really nice benefits, whereas I have health insurance to cover a catastrophe and not much else.

Don't get me wrong, I am not complaining. I have a roof over my head. Clothes to wear. Food to eat. And a reasonable vacation a year. Not too shabby for a kid from South 13th Street in Springfield. I honestly didn't enter the practice of law just to be rich. I knew I could make a living doing it and nothing more. That was good enough for me. I have never had the drive to be wealthy. If you've never had it, you never know it's missing.

Next year I turn 40. I have little to no retirement money. My portfolio is limited to pictures. And I own no real property. Just some books really. And some old smelly running shoes.

I see the television commercials from financial companies like Charles Schwab preaching about planning for retirement. The one with the middle age guy in the diner IM'ing about how retirement talk has gone from "When we retire" to "If we retire" really strikes me. I don't know from where my next dollar is coming. Retirement planning seems like quantum mechanics. And I am terrible at high level math.

I dream of fleeing West. The mountains are calling me. But what am I going do to when I get there? Become the town lawyer of some small, rural mountain side city? How many shooting cases will I get out there? Robberies? Burglaries? I will probably have to become a real life Atticus Finch and there's nothing wrong with that.

Anywhere but here, having such a limited practice would bring starvation. Well maybe I could survive in Atlanta. Perhaps D.C. Los Angeles. Miami. Detroit. But none of those are anywhere close to where I want to live.

I want a simple home. One story ranch. A small porch. A rocking chair. And a view that could inspire art of many forms. I want my dog. My cats. A couple of horses. Maybe even a pick-up truck.

And if I have to work until the day I die to have and keep that dream, it will be worth it.

Scrivening wills can't be that bad.


Tuesday, October 5, 2010

A Bad Case: Felony Probation & A New Felony

I have written about how problematic it is when a client is on felony probation and picks up a new felony. It's probably the most frustrating set of circumstances I deal with regularly.

Back in June I was hired to represent someone in this exact situation. He was on probation for a Class 4 felony involving possession of cannabis. A few months into his probation, the police obtained a search warrant for his home. When the cops busted in the client told them he had a little bit of weed. He also told them where it was.

I have had clients in the past that told the cops what they had and where it was when faced with 12 officers that just blew the door off the hinges. They are cooperative so the house isn't torn to pieces during a search.

If you have never seen pictures of a house that police officers have searched, you might not understand. But assume a tornado blew through the house and threw stuff everywhere and you will be close to picturing how it looks after a search warrant has been executed. It's nasty. And disturbing.

Despite the client's cooperation, the police decided to turn his house inside out and then upside down. They naturally found the weed. There was 11 grams of it. That would normally be a misdemeanor amount, but they charged possession with intent to deliver, thus bumping it up to a Class 4 felony.

Also found were two .22 caliber bullets and in a closet in a bedroom a random rifle bullet.

Uh-oh. Houston, we have a problem.

Convicted felons in Illinois are prohibited from possessing firearms and weapons. That's pretty obvious. But ammunition is prohibited as well. These three rounds of ammunition brought an Unlawful Use of a Weapon or Ammunition by a Felon count. It's a Class 3 felony, subject to 2-5 years in prison.

The client denied knowing about the ammunition. And based on where it was found, I believe him. And he's not the only adult male in his home. On top of that, no weapons were found and the client has no weapon cases in his background. In fact, the cannabis case he was on probation for was his first felony. He's in his mid 30's, so clearly not a career criminal or some gang banger.

Did he violate his probation? Yes. He told the cops the weed was his. Not much I can do with this case regarding the probation violation. The only shot this case had was if the search warrant was bad. It wasn't. Search warrant cases are very hard to beat. There's an assumption they are valid since a judge approved the warrant. A special hearing to challenge a search warrant has to be requested. They are called Frank's hearings. And again, the defendant has to request and be granted one. They are not like normal suppression hearings.

I have filed one Frank's motion. The State was given a continuance to file a written response in objection to my motion. The prosecutor also wanted to argue her response but didn't show up to do so when it was filed. I withdrew my motion, demanded trial, and got a not guilty. But I digress. Totally.

Back to this case...on the last court date I had a 402 conference with the judge and the State. In a 402 conference, the judge is told about the case in the light most favorable to the State. The defendant's background is also discussed and I can offer mitigation but not really argue about the facts of the case.

I wanted the same deal I got for my last VOP client. I wanted to either plead guilty or have a finding of guilty on the VOP in exchange for a sentence of time considered served. The client has been in the county jail since mid May. I also wanted probation to continue and for the new case to go away. Had I gotten this deal, the client would have walked out of the county jail and right back on probation.

Given the lack of seriousness of either case, this seemed sensible. 3-4 months in the county jail isn't a picnic.

The judge didn't see it my way. He offered to PTU and give him the minimum of 2 years on the new case. PTU means, Probation Terminated Unsatisfactorily. And that's right, 2 years in prison for three rounds of ammunition.

I wasn't happy.

The client asked about trying to beat the new case. Then I had to explain the State elected to prosecute the VOP since the burden of proof is merely preponderance of the evidence. And here's where it got really messy and confusing.

For VOP's the defendant gets a hearing at a much lower standard of proof. New cases, obviously, bring trial rights and the beyond a reasonable doubt standard. It's pretty easy to see why the VOP is normally the route the State goes. It's just easier to win and send Mr. Defendant to prison.

There were a couple of issues the client and I discussed in an attempt to make his situation a little better. He did not want to plead guilty to the Class 3 UUW by felon charge. And I understood this. I asked the State if he could plead to the Class 4 possession of cannabis with intent to deliver count and still do the 2 years. The State refused.

Then I thought about proceeding to a VOP hearing. This way he would be subject to sentencing on the Class 4 felony he was already on probation for. He wouldn't have to plead guilty to the Class 3 UUW by Felon charge for the bullets. This was attractive on the surface, at least.

At a VOP hearing, this was a dead loser. But it was risky. The judge could give him up to 3 years (sentencing range for Class 4 felony is 1-3 years) rather than the 2 years offered at the 402 conference. But the new case was still lingering and the State would have a few options.

Regarding the new case, the State could be happy with the sentencing on the VOP and dismiss it. They could burn it in aggravation in the hopes the judge would give him 3 years. Or they could just proceed with that case and make us fight it.

At trial, I explained to the client that the new case was probably a loser on the weed (State would also need to prove intent to deliver) but that we might win on the bullets. So even if we lost on the weed but prevailed on the bullets, he could get another 1-3 years added to the time he would have to serve on the VOP. And he would also have to pay me to try the new case.

In the end, he took the judge's offer. He will probably do about 7 months downstate. This whole case stunk. I am not sure I was able to explain in this post how difficult this situation was because of the unknowns.

The cops only got the warrant for his house because someone snitched on him. Was he wrong to have the weed in his house? Yes, absolutely. Did he know the bullets were also there? I don't think so.

Was either the 11 grams of pot or the bullets really worth tax payer money to send him to prison?

Standing there yesterday during his plea hearing, I actually felt like chewing my own teeth.


Tuesday, September 28, 2010

For Love of The Work

I went to a concert last week with a friend from law school. We hadn't seen each other in a couple of years. She asked about my practice. I told her I handle street crimes. She responded "so, drugs and guns?"

Yep, drugs and guns. I quickly explained that over half the weekly Chicago felony arrests are for drugs and there's guns everywhere. Adding in some robberies of various types, random burglaries, stray shootings, and an occasional murder will represent my entire practice.

We talked about the local police department. I told her about how in certain situations they like to take shortcuts on the street. Then I told her what she probably already knew: the overwhelming majority of accused felons in the city of Chicago are represented by the Office of the Public Defender. So most of them get a free defense.

The next morning a Twitter acquaintance from Florida, who is a public defender, mentioned a standing ovation rendered to PD's at a criminal law conference/seminar in Florida.I think this is great. We need the PD's. In fact, we need more of them but there's no money here for more. I don't see this changing anytime soon.

Our PD's (and I am sure most) have a thankless job. They are criticized and doubted by their own clients. The families yell at them. Judges push some of them around. And there are a couple of horrible rumors floating around here that couldn't be more incorrect. The first one is that PD's are not real lawyers. And secondly, they just work with the government to get everyone to plead guilty.

Rubbish on both accounts.

The city of Chicago PD's in felony trial courtrooms have more criminal experience than myself and I have told endless callers this. I have done everything I can do to dispel the above mentioned myths.

The PD's get the crap cases. It's a fact. Anyone with a decent case whose family can put two nickels together is going to hire a private attorney, like myself. Am I better in court than a PD? Some, yes. Some, no. We in the defense bar, PD or private, win some and lose some.

Here in Chicago, flashy lawyering won't win cases in criminal court. We are only as good as the facts of our case. It's really that simple. And I like it this way. This way I know going in how good of a shot I have.

Last week the most seasoned private homicide trial lawyer in the city lost a murder case. But yesterday, a PD got a not guilty on a murder case from a jury. It's case specific. Win some, lose some.

Our local PD's are in a union. They have good benefits. Some of them appear to love their job and others, not so much.

I, too, have my days when it must appear I love being in court. And I am sure on other days I can look a bit distracted. But to do what PD's do, day in and day out, and tolerate all the crap thrown at them, they must love the work.

They all deserve some respect. And a thank you.


Sunday, September 26, 2010

Running Injuries

Almost every person I have ever known that was a dedicated runner has been injured at some point in their running career. If you have ever watched someone running in slow motion, it's not hard to see how this activity causes problems. There is some serious impact.

Some say don't run. I have heard of doctors giving this advice. My own mother has told me the same thing. But for someone like me who runs to maintain sanity, that's a very tough sell.

Running injuries come in a variety of aches, ailments, and structural defects. Injuries can be caused by improper shoes, lack of stretching, improper diet, and stupid training. I have had at one time probably been injured due to all of the above.

Nailing down the cause of an injury can be very tricky. The more experience a runner has, the more that runner should know his or her body. But one thing a lot of runners do that gets them in trouble is ignoring their bodies. And usually at their own detriment.

In 2008 I started running seriously again after an almost 10 year break. I rediscovered my love of it. I was reminded of how great I feel when I am in very good shape. And I trained like an idiot. I have a tendency to think if something is good, more of that thing has to be better. When it comes to miles and running them, this assumption often fails. It did for me.

I really started running in December of 2007 while in Japan, but I kept no log of distances, dates, and time. When I was in Japan I had no idea how far or fast I ran. I just ran and tried to find my way back to from where I started. I know I scared some citizens of Hiroshima by running through its streets at 4:30 am on one chilly morning. Not too many Gaijins around there.

But around February 2008, I thought about returning to racing. Why not? It would give my new running a goal. Could I be faster though 10 years older? That question lead me down the path of ignorant training.

By April I was in glorious shape, perhaps the best running shape of my life. And I quickly fell injured a few weeks before a marathon that I predicted at finishing time well under 3 hours.

Steroid injections into both knees brought no relief. Physical therapy failed too. One month of little running went by. Then another. I wasn't getting better. I couldn't run pain free for any meaningful distance. I had an MRI that didn't reveal anything structurally wrong. But I knew something was not right.

I finally convinced an orthopedic surgeon to go in my knee and have a look. As it turns out, I was right. The MRI missed some frayed cartilage at the bottom of my femur. My surgeon shaved it down. 3 days after the surgery and once the swelling was mostly gone, simply putting all my weight on the injured knee and feeling no pain, told me the procedure was successful.

I was told not to run for 6 weeks. I made it 2. It was mid August. The Chicago Marathon was in early October. I had missed 3.5 months of proper training. There was no way I was still doing this race.

But I did anyway. And ran a 3:04:40 with no speed work for 5 months before the race. How is that possible? It's possible because of the level of fitness I had obtained prior to injury back in April. And I was in the gym on ellipticals when I couldn't run.

It would seem that for me, supreme running fitness is found in the gray area between healthy and injured. I kept running after the marathon in October 2008 but dealt with bilateral lower leg pain (shin splints) until I took most of December off to heal.

2009 started slower than 2008 running wise. It wasn't until April that I started running with any real purpose. I signed up for races including the Chicago Marathon again that October. I ran well in April and even better in May and June. I was back in almost April 2008 shape. And then it happened all over again.

In 2009 my knees were fine. But both legs from the knee down were in extreme pain from running. I hate using the phrase shin splints, because it's not really a condition but rather a symptom that can be caused by a dozen problems.

I tried at least 6 different shoes. I incorporated more stretching and strengthening. Nothing worked. What I needed is the remedy that's almost impossible to sell to a runner: complete and total rest.

This is a perfect example of me failing to listen to my body and paying for it. In 2008, I trained ignorantly. But my injury did sort of just creep up on me, which is rare. I simply woke up one morning and could barely walk.

2009, on the other hand, was preventable. I ran through pain for a month. And for that one month I had to give my body back 3 months of no running. And so I sat July, August, and September 2009. And I was miserable. I wanted to be at the lake running in the sun.

I still ran the marathon in October 2009, but it was a jog. And I decided I was going to actually take part in that race on the Thursday of race week. I don't regret it.

I didn't run much late in the year of 2009. Instead I looked at reasons how or why I was injured 2 years in a row and was forced to miss months of running from each year. I had simply done too much too soon. I was forced to realize I am approaching 40. I had to be smarter.

2010 began. I had no plans of doing one race this year. I already wrote about this in a prior post so I won't repeat myself here. But let's just say this year was much more methodical.  Increases in running volume and intensity were done gradually. This was in stark contrast to 2008 and 2009.

This year I didn't regularly go over 30 miles per week until May. It's no coincidence that in May the weather was warm enough for me to run at the lake in the sun. I ran 40 miles per week in June. In July it was 50. August was 55.

My average per mile pace quickened as I ran more with no thought. It just happens. I imagine this happens to every runner. We all have a pace our legs find if we don't think about it. It takes concentration to run faster or slower. I know I am getting fitter when auto-pilot pace gets faster.

When I felt this pace was flattening out, I added some speed work. I didn't do my first tempo runs until August. And then it was only once per week. I ran some pretty tough workouts in extreme heat and all but one of them went really well.

On September 12, 2010 I raced the Chicago Half Marathon. The purpose of this race was to see where my fitness was. And with the results of this race, I could predict a time for October's marathon.

To say I went into this race 100% healthy is inaccurate. Back in July (I think) from out of no where, I developed plantar fasciitis in my left foot. It came on suddenly during the end of a 10 mile run. This is a condition I have had little experience with. But I learned how to train with it, though I took a full day off and reduced mileage for a couple of days. It is still bothering me, but I can live with it.

Prior to September, my last really good half marathon was a 1:21 in April 2008. That race would be my measuring stick. This year's half marathon wasn't great. I ran a 1:28:06 and fought myself every step of that race. I never got comfortable and found a groove. It just sucked. My per mile pace for the first 4-5 miles was 6:30 but I blew up and slowed down significantly.

1:28:06. Something was wrong with that. That's an average per mile pace of just 6:44. Back in April, when I wasn't in proper running form, I raced the Lakefront 10 miler and averaged 6:50 per mile.

Clearly something was amiss. Did I just have a bad race? Three days later when my legs were still too trashed to run more than 4 miles, I knew it was more than just a bad morning.

Since I couldn't run, I went back to the gym for some elliptical work. This was last Friday, September 17, 2010. And I did something I hadn't done in months. I weighed myself. I quickly knew why my race pace was so slow and my legs were trashed. I weighed too much. Simple.

The scale read 187 lbs. Wow. That was 10 lbs over what I would have guessed. But where was the extra weight? Those that know me will tell you I am incredibly lean right now. You can see my abs and lower ribs when I have no shirt on and there's no flab through the midsection. My clothes are very loose. I bought a pair of size 32" waist jeans a few weeks ago and they are way too big. What gives?

Does this look like 187 lbs? I stand 5'10" with shoes on.

When I saw race photos, it was clear where the extra weight is: the upper body. I am not skinny like a typical distance runner. Right now, I am carrying too much extra muscle up top.

I went back and looked at data from 2008. My race weight for the 1:21 half marathon in Springfield in April was 173. A month prior I was 170. A month before that 170. In January 2008, I was 167.

Apparently my body likes to add weight when I run more. This is sort of backwards from what one would normally expect. Looking at 2008 and 2010, I gained weight as I ramped up mileage and intensity. I am sure the same was true in 2009 but I haven't looked.

I think my body wants to be around 170-175 lbs when I am in shape. That's just where it wants to be. Or at least that's where it appears I can run well and still not weigh too much. Had I weighed myself back in July or August and seen a few extra pounds, I could have reduced calorie intake. That would have done it.

Since last Friday, I have lost 6 lbs and have ran very little. I adjusted food and supplement intake. I did a 20 mile run last Sunday but only ran once this week. I should be able to loose another 6-10 in the next 2 weeks prior to race day.

That's great, but sitting here on Saturday morning, September 25, I can't run. Well, I could. But it would make things worse. At this point, I doubt there's anything more I can do to make October 10, 2010 a reasonable shot at the 3 hour mark, except lose more weight.

Something is not right with my left, lower leg. I am being cautious. I am icing. I am stretching. I am resting. I am taking ibuprofen. I am doing elliptical work. And I am remaining positive. I don't want to think about not being ready on October 10.

My optimistic and positive side wants to think that even if Chicago is a no go, I won't talk about a wasted spring and summer of running. But my realistic side knows it will be a failure on some level. But right now, I am positive. I am saying to myself a little rest along with some weight loss might produce a great race.

I hope to get in a few workouts next week where I run at or slightly faster than goal marathon pace. I think mentally I need to know I can hit that speed and hope like hell it feels maintainable for 3 hours. I am not concerned about the total distance. I have put in the long runs. I am ok.

If October 10, 2010 doesn't go my way, it will be a learning experience. My body did not like racing at close to 190lbs. That's simply too much. And I am paying for it. I didn't think I had put any weight on. It never looked like it. And since my dress slacks were always just right or a little loose, why would I check?

But the Chicago Marathon won't be my last race of the year. I am headed to Dallas on the weekend of December 5 for the White Rock Marathon. The plan was just to have that race there to keep me from getting out of shape. But this assumed I would bust 3 hours in October and be headed to Boston in April 2011, thus an interim race would be a good idea.

But if I don't break 3 hours next month, what do I do? I can qualify for Boston no problem. Since I will be 40 by the 2011 race, I think I get an extra 5 minutes, or 3:20. Meh. It's sub 3 hours or no Boston. That's the deal I made with myself a long time ago. I am not backing out now.

Last year, the Boston Marathon sold out in November. If Chicago is a failure, but I come really close, do I go ahead and register for Boston in the hope that Dallas is a sub 3? I could always register for the Boston 2011 race and just not do it if Dallas is a bust too. This is the likely plan.

The act of running is pretty simple. We do it naturally as children. We're not taught. One day, we just do it. Some of us run, trip over untied shoe laces, and thrust our arms through glass doors, causing deep lacerations which scares the be-Jesus out of our mothers.

But I digress.

How did this get so complicated?