Friday, February 26, 2010

Defendant Demands Trial

The 6th Amendment reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

In Illinois the right to a speedy trial is also in the state constitution and it was also codified by statute. After all, the word "speedy" can mean a lot of things.

If in custody, the State has 120 days to bring the defendant to trial, as long as the demand for speedy trial has been maintained since the arrest. But, it rarely is. I wrote about this issue last year.

I am not going to re-write my prior post, so if you want to know the mechanics of the speedy trial rule in my jurisdiction please read the first post.

However, by law, if the State does not start trial within 120 days, per the rule, the defendant's case is dismissed by the court. 

I am only revisiting this topic because twice this week I have had to say "defendant demands trial." This isn't done too often.

If you read earlier this week, the State answered "not ready" for an attempt murder case that was set for trial Tuesday. After my last trial ended last Thursday, I spent the next four days doing final prep work for Tuesday's trial. I was ready. The State wasn't.

I wasn't completely surprised but I was a little angry. I spent so much time doing mental prep know getting myself psyched up and ready to go. Having the State answer "not ready" was, for me, a total let down.

I imagine it's like being a professional boxer. The big fight is set. Don King promotes it. Pay-per-view is broadcasting it. You get in shape by training for hours and hours. And then you mentally prepare to get the "eye of the Tiger."

All of this to get to the day of the fight and learn your opponent doesn't want to step in the ring with you. Huh? Are you for real? That's close to what it feels like to me.

When this happens, the defense attorney has two options. Continue the case by agreement and pick a new trial date with the State. Or demand trial and let the State pick the new trial date. That's right, if trial is demanded, the State gets to pick when.

What if I already have a trial set for the day the State picks? This actually did happen this week. But, too bad. At least one of them isn't going to proceed. So now I have to reschedule the trial that was scheduled first since it was by agreement and the clients are on bond.

Now I have to go advance the first case and pick a new trial date which won't make that judge or prosecutor happy. The clients aren't happy either. But I demanded on the attempt murder case and my client's in jail. He gets priority right now.

I had a murder case set for March 8. I have been working on that case since last August. It was originally set for trial in February. But the judge had a seminar, thus the March date. Today was supposed to be the last court date prior to trial. Motions in limine were ordered to be filed today. I prepared mine.

I got to court this morning to learn the State won't be ready on March 8. Again? Come on. The felony courtrooms have at least 3 prosecutors. They have secretaries, paid law clerks, investigators, the police department and they can't get ready for trial?

In this case there are 2 defendants. My co-counsel said she was going to demand and I agreed. We demanded trial and I held my breath, hoping the State wasn't going to pick a date when I already have a trial set. And God forbid the same date the State selected on Tuesday.

I ended up lucking out. But this trial demand business stinks from the defense perspective. The State can drag their feet all the way through discovery, not answer ready for trial when I am ready, then pick a date when its best for them even if it's not a good date for me. And not to mention the attitude I get hit with when I say "defendant demands trial."

In all fairness, the prosecutor this morning was pretty cool about it. He actually didn't mind the trial demand. He was a little irritated but not mean like others. I guess he's been having problems getting some last minute work done for him for this case, but now that there's been a demand, I guess he gets priority.

As of right now, my next scheduled trial is March 15. It's an attempt murder with 2 shooting victims. I was in court for that case this morning too. This was the case I came in on at the very last minute. Why do I have a feeling that on March 15, I will once again have to say "defendant demands trial"?


Thursday, February 25, 2010

Hard to Defend

I was recently contacted by a friend from law school. I haven't seen nor heard from him in close to 4 years. He was quietly one of the top students in my class. I say quietly because he wasn't pompous, elitist, or self-important. And like me, he's a "down-stater." We are humble folk, if nothing else.

After graduation my friend went back down state. He works at a law firm, but I don't know which one. And until a couple of days ago I had no idea he did criminal defense work.

He wrote to me about a post of mine from last week. I was shocked to learn people might actually read this blog. Anyway, something about that post struck a common chord with him, especially the part about defending a client you believe to be factually innocent.

He wrote that his son had recently asked him how he could defend someone who is guilty. He answered that it was easier to defend a guilty person because there is less pressure. While I realize that to be true, I have never thought about it that way, which is probably why he was a better student than myself. He thinks differently. Perhaps on a higher level. I don't know.

My reptilian brain has been tossing around that concept since I read it. Now that I have had a few days to think about it, I wanted to write a bit.

I have written in the past that I won't take a case of any seriousness unless I am pretty sure the client is innocent. Right now I have 2 murders, and 3 attempt murders (although 1 is just charged for being there while his buddy shot at a house). All 5 cases have good facts and minimal, if any, physical evidence.

If someone has inflicted great bodily harm, I don't want to be sitting next to the the guy that did it. As a staunch defender of the constitution, I do believe everyone is entitled to a defense, despite the crime. But right now, with my limited experience, I wouldn't feel comfortable taking a likely guilty case to trial.

I think I know how to win a case with good facts. I think I know how a case with close facts could be won. But I have no clue how to win a dog. I cannot yet weave gold from crap. And really, even if I did, I don't want to put murderers back on the street. I don't need the money that bad.

However, I do play a part in getting factually guilty people off in the name of the constitution. But I draw the line at violent crime. I sleep better at night, but not really. It is sometimes hard to sleep knowing you have an innocent client in jail. Right now, I have at least 5, so I sleep poorly most nights.

And this is where my friend and I have felt the same pressure. All of my clients, and their families, with the serious cases believe they will be found not guilty. Why? It's expected. Because that's what they are. Not guilty. They expect the justice system to work. They believe in the system.

Whether or not it's clearly stated, they must have faith in me. I think it's implied, as I am part of the system. But I don't think anyone is naive enough to blindly assume that just any old attorney will do. If they did, why hire private counsel? No, there must be belief in me. Why? Not sure.

If you never wonder if that belief might be misplaced, you're either Clarence Darrow's reincarnate or you never ask yourself the tough questions. I am not speaking about brooding on potential failure, but rather just being aware of the stakes. And your role. It's enormous.

You are your client's only fan who can put on his case. You may have witnesses and you may have evidence, but when the rubber meets the road, you're it. You are seen, correctly or not, as being the only obstacle attempting to frustrate the government's undying effort to lock up your client for life. Again, you're it.

This belief in me is palpable. I can smell it. I can hear it. I can taste it. And it causes a lot of stress and anxiety. If I fail, the system fails. Or so it would seem.

These clients are all looking at decades of prison time and for some, it's tantamount to a life sentence. For some reason all of these people placed the burden of preventing a life of imprisonment on me. My experience level, or lack thereof, was fully disclosed to all of them.

The universal response from the mothers of all of these clients is "I just want you to help my son. I want someone to represent him that will care."

How do you say "no" to that? I can't. I may be short on experience but I bring an endless supply of caring. I care too much and at times, it's a personal liability.

I also have a soft spot for distraught mothers. Grandmothers are even worse. All grandmothers love their grandsons unconditionally. "Well, he's really a good kid but just did something stupid."

And here's the one that gets me every time and I hear it a lot "Jesus brought you to us for a reason, it's in God's hands now. You will be fine, baby." What do you do with that? You can't decline to handle a case if you were sent by Jesus, with God's approval.

I am only half-kidding. To some of you that may seem a bit silly or misguided, but my people actually believe it to be true. And, it might just be. Who am I to say? I am not going to argue with them. If they feel better by thinking a higher power is involved, then so be it. And again, they might be right.

After my guilty verdict last week, both my client's crying mother and girlfriend hugged me and said "thank you." "For what? We lost" I said. "But you cared and fought for him. You gave him a chance."

If I stop and think about the ramifications and possible outcomes of some of my current cases, it causes a brief, but massive panic attack. So, I try not to do it and just focus on the case and remind myself that I will know the facts better than my opponent.

If you have a beating heart, an ounce of empathy, and maybe a dash of compassion, some of my cases would eat at you. You also would not sleep well.

But you might be motivated more than you ever have been in your entire life. You might even feel like you have a purpose. And a purpose, is quite a thing.

I don't represent those who can afford to hire an attorney, I zealously defend those who can't afford not to hire an attorney.


Wednesday, February 24, 2010

The Ends Jusitfy the Means...I Mean Search

I handle a lot of cases that are the result of contraband being found during a vehicle search. Last spring I naively thought Arizona v. Gant put some much needed teeth back into the 4th Amendment.

In less than one year, here in Chicago, Gant is meaningless. As I have written, suddenly everyone is keeping their guns and drugs in plain view. I have been thinking about this a lot lately because of very similar preliminary hearing police officer testimony.

When someone calls me about a case and I know what the charge is, the first thing I ask is "tell me about the arrest." Here is the story I hear all the time.

"I was driving and the police pulled me over. Told me to get out of the car. Searched it and found weed in the glove box, or coke in the console, or maybe a pistol under the driver's seat."

Then I ask, "why were you pulled over?"

"I don't know"

"Did you have a valid driver's license?"


"Were you issued a traffic ticket?"


This scenario isn't universally true. I never realized how many people drive around with no license. In Illinois (at least around here) if you get caught driving with no license, you're getting arrested. Out in DuPage county, I hear they put people in the county jail for 30 days as punishment.

Gant was supposed to prevent what comes next. The vehicle search. But the cops are smart. They still search the car. But now if they find any contraband the search was incident to impound, which is legal. It's called an inventory search and it's a judicially created exception to the search warrant requirement for vehicles.

Inventory searches are done to protect the vehicle owner's property. The cops want to make sure any Rolex watches in the car are inventoried properly and returned to you. That's the story anyway.

Inventory searches are really done to find stuff that puts you in the county jail with a felony arrest. Our jail is a city inside a city, sort of like the Vatican but much less holy. 

But not everyone drives with no license. Some people do, actually, have them. For those folks it's a shame they bought a car that inherently emits a strong odor of marijuana. Some models have a nice burning weed smell but more executive models come with packaged weed smell.

If your car smells like weed it's getting searched. If nothing is found, you get let go. No harm, no foul. You will probably just be grateful a run-in with the police didn't end up with you being sent to county. Phew!

But, if something is found, well your car smells like weed and it's your fault.

In all seriousness, the cops around here pull people out of their car and search it as a matter of course. And as stated, if nothing is found, you get let go. But, if something is found chances are you were stupid enough to leave it in plain view or your car smells like Cheech and Chong camped inside of it.

Now here is where it gets plain stupid. $20 bags of crack and heroin are found in cars hourly. Let's say it's your car and you were the only person in it. What's going to happen?

The car is getting impounded and you're going to the county jail. 2-3 weeks later you will have your preliminary hearing and the judge will find no probable cause because of the small amount of drugs found. That night you will get out of jail.

If you had any cash on you when arrested, you're never getting that back. That's gone. It was drug money. Forget it.

And to add insult to injury, it's going to cost you over $1,000 to get your car back.

As you can imagine, a lot of cars are never retrieved. I often wonder what's done with them. Can you go, just get the rims and leave the car for say, $300? How about the stereo? The sub-woofer in the trunk? $5 to get my fuzzy dice, please sir?

It gets interesting when someone is arrested and it's not their car. Your girlfriend has only $1,000. Question: is she going to use that money to (a) bond you out, or (b) get her car out of impound so she can get to work?

Forget about. You're eating jailhouse bologna sandwiches for a couple of weeks. And your girl is finding a new man. One that won't smoke weed while driving her car.


Tuesday, February 23, 2010

Felony Review

Chicago police are authorized to bring felony charges for "on-view" arrests. If the cops make the arrest contemporaneously to the offense, the police department has authority to charge. Example: person found with cocaine in their pocket. Easy.

However, once detectives get involved, felony charges have to be approved by the State's Attorney's Office. It makes sense because the police didn't see the crime as it was committed or at any time close. An example is a murder investigation.

Assistant State's Attorneys rotate through felony review, which I call felony approval. In it's simplest use, a detective calls the on-call felony review attorney and runs the case by them. I don't know what the policy or threshold is, but if the attorney thinks there's enough evidence, they approve felony charges.

Sometimes, however, the ASA's go to the police stations to review the case, interview witnesses, and take written statements. And although this sounds like a great, thorough system, it often fails in practice.

There is no way some of these cases are getting a really good look prior to being charged.

In a typical case that's been investigated, I may have up to four versions of statements from a witness, that are given in chronological order. First are the detective's hand-written notes (GPR's...General Progress Reports) from the initial interview. These notes are usually copied exactly into the computerized supplementary report. The "supp" as we call it, is the 2nd version.

Some witnesses are asked to give a written statement (3rd version) in the prensce of an ASA and a detective. Each page of the statement is signed by everyone present and they all contain language to the effect that the witness was not threatened, not handcuffed, was allowed to use the bathroom, and was given a pop to drink. Some are lucky enough to get McDonald's.

If there is a 4th version, it's grand jury testimony.

I had a case set for trial today. My client was charged with shooting another young man last June. This is very serious case. 31 years in prison is the minimum sentence. The state had 4 eyewitnesses that said they saw my client do the shooting. None of the boys testified before the grand jury.

As of yesterday morning, I only had versions 2 and 3 of their statements. The state had not produced the hand-written notes, or GPR's. I assumed, and incorrectly, there were none because this case was closed 8 hours after the shooting. Had there been GPR's, they would have been given to me pursuant to Illinois Supreme Court Rule 412. Plus, I filed a discovery motion requesting the GPR's (among other things) back in August.

Rule 412 lays out what the state has to give the defendant to prepare his case for trial. For you non-lawyers, this is called discovery. Basically, we get everything. If the rules are followed, there are no surprises at trial.

The defense also has to give certain discovery information to the state, such as: a list of witnesses, possible defenses (self-defense, alibi, etc), list of tangible pieces of physical evidence, and scientific test results the defense intends to introduce at trial. 

Again, there should be no surprises at trial. How about the night before trial?

Last night I was called by one of the prosecutors. I was asked if I had the GPR's. No. I don't. I was told the police just gave them to the her. She said she would fax them to me. Great. More crap I have to review.

But, I assumed the GPR's would be a mirror of what was in the "Supp". That's how it should be. Well, about that word assume, when you do assume you make an ass out of u and me.

I only got GPR's for 3 of the 4 witnesses. One of the witnesses' story changed completely from the GPR to the Supp. He went from not seeing the face of the shooter and running before the first shot, to seeing clearly that it was my client and even was able to describe the baseball cap he was wearing. And now claimed he saw the victim get shot before he ran.

I made a spreadsheet and compared the facts found in all 3 versions from all 4 witnesses (except 1 of them because I still don't have his GPR).

I found it amazing how many more facts kept being added to their statements as the case was being assembled in just one day. By the time they all make their written statements, the amount of facts they recalled was as if at one fraction of a second their brains snapped a picture like a camera.

The problem is that our brain is not a camera. When you hear gunfire you run. You don't look to see where it's coming from and notice the shoes the shooter is wearing, while looking him in the face, being able to read his ball cap, and being able to tell it was a semi-automatic handgun from about 100 feet away.

Well, my brain doesn't work like that. But I may be slow.

There is one huge piece of physical evidence in the case too, but I am not going to mention it. It was acquired the day of the shooting and is very favorable to my defense. And this piece of evidence was not disclosed, though requested several times, until 6 months into the case.

Did the felony review attorney really look at this case? Did the detectives lay out their written notes for comparison? Did an attorney notice the inconsistencies between the 4 statements? Or did the cops keep the lawyer in the dark?

There's evil at work here. But who's the evil-doer? Or was this all just an isolated mistake?

Let's briefly review a couple more.

Have a client charged with residential burglary. One fingerprint lifted off some type of box inside the house has my client's print on it. There were 4 other prints lifted from the box. None of them belong to the homeowner or my client. He was arrested several months after the burglary. The evidence technician didn't take a picture of the box from which the print was lifted nor did the police inventory it.

Therefore, the evidence is one print from some type of box the home owner thought was moved. That's it. The entire case. No witnesses. No pawn records. No property in my client's house. And not only did it pass felony review, it was indicted by the grand jury.

Next up, I have a murder case that arose from an attempted car hijacking gone wrong. There was one eye-witness and one other person in the car that didn't see the bad guy. The eye-witness tells the ASA prior to testifying before the grand jury he's no longer sure he got the right person. Detectives pressure him but he doesn't give in.

He's not called before the GJ. But, the other witness is; the one that couldn't ID the shooter. In the space of 5 pages of testimony she goes from not seeing the shooter's face to being sure it was my client.

In this case, there is NO physical evidence tying my client to anything. The only evidence they had was the one eye-witness who changed his mind a week later. This was back in August and still my client still sits in jail with no bond, awaiting a late March trial.

Knowing the one eye-witness is no longer sure he ID'd the right guy, you would think the police might take another look at the case. Not in Chicago. It would take a Presidential Order to re-open a case that's been closed for prosecution. 

It was only known to me last month that the witness balked before the GJ and thus wasn't called. I couldn't believe I was reading what I read. And I really couldn't believe it was actually disclosed to me. Then I kicked myself in the butt for not noticing that the only eye-witness didn't testify. I felt so stupid.

I have a feeling the cops are playing the odds. I don't know an exact number, but I estimate up to 85% of people charged with felonies in Chicago, cannot afford to hire private counsel. The cops don't think anyone is going to take the time to thoroughly review a case.

Before doing criminal work I was in workers' compensation defense. I spent two years reviewing medical records, looking for inconsistencies in patient histories, complaints, test results, etc. I can find gnat shit in pepper.

The PD's don't have the time or the manpower. They are overworked and understaffed. Under appreciated too. A typical felony trial PD has up to 100 cases at any one time. I have about 25. I work from home. I work Friday nights. Sunday mornings. I never leave work. When I work up a case, I eat, sleep, and breath it. It becomes me. Or, I become it.

I do have a few law students who are helping me right now and are generously doing it for free. In fact, I was only so well prepared for this morning's trial because of the great work one of them did checking facts and then challenging my theory of the case. And she's a 1L. Amazing.

Though she hasn't even had evidence or trial advocacy yet, I showed her my system of cross-examination (actually it's mostly an adapted version of Pozner & Dodd's system ) and she was able to put some very useful stuff together.

My other 2 helpers have already reviewed files that are set for trial but I am not doing the final prep work yet.

Never underestimate the power of a well-motivated law student. And never underestimate a ravenously hungry, would-be trial, attorney who loves his work.

Not surprisingly, the State answered "not ready" this morning. And I wonder why, but don't really care. I was forced to demand trial. I already had the speedy trial motion prepared and dated for today. Something told me this was going to happen.

They now have 71 days to begin trial or my client goes home.

If the cops made a bad case, the state is stuck with it. One of their own supposedly reviewed (approved) it. You charged it, now prove it. You want a guilty? Earn it. Do your job. Be a lawyer and not a plea dealer. I can't figure out how someone who obviously aspired to be a trial attorney hates trying cases like so many of them do.

In some courtrooms, you get treated like a troublemaker if you try to make them do their job. Demand trial, difficult attorney. Demand jury trial, a$$hole.

If you think I am a pain in your tush now, wait a few years until I get really, really good at this. But, fortunately you will have probably been assigned to felony review by then and won't have to deal with me.


Monday, February 22, 2010

The Good PD

Don't have time for a lengthy post but wanted to note this quickly because I bumped into something extraordinary today.

Every now and then I am reminded that there are some very caring people in the world. In my line of work it's rare, but it does happen.

Today was I called by a public defender in Minnesota. I am not going to mention any specifics because I don't know if she would want to be named. However, a former client of hers was recently arrested in Chicago. He called her for help.

There might be some video footage relevant to his case. There is fear that if this video does exist, it will be destroyed 30 days after it was captured. Therefore, a subpoena has to be issued immediately. But there's a problem.

The defendant has not been assigned a public defender in Chicago. A defendant usually has one PD at the bond hearing, a different one at the preliminary hearing, and finally their assigned PD at the arraignment in the trial courtroom.

Right now the defendant is between his preliminary hearing and his arraignment, so technically he has no attorney. And if he has no attorney, no one can or will issue a subpoena for the video. By the time he is arraigned the 30 days will have expired and the video, if it exists, will have been destroyed.

This is where I come in.

She asked if I could help. I found it a little strange a PD in another state was calling me about an ex-client of hers that's now in Chicago and has a legal problem.

I was told a very sad story. This man was wrongfully convicted of murder and spent 10 years in prison before he finally got a new trial. Apparently, she was his attorney at some point in that process, if not the entire time.

It appears they bonded. He has reached to her for help and she wants to help him. It was impossible not to want to help her, help him. 

I told her I would gather what case information I could and issue a subpoena. I made a couple of phone calls, then quickly prepared a subpoena and sent it out.

I asked her who was going to represent him. He has a very serious case. She said he had no money, so likely the PD's office would be defending him. She believes he's innocent. I kept talking. Eventually she asked how much I would charge to take the case. I made a generous offer, including trial.

She said she would pay. It's not a lot of money. But it's a lot of money for an out of state PD to pay for an ex-client. I don't know who this woman is, but I hope to meet her. People like this don't come along everyday. It would be nice to actually see one in person.


Sunday, February 21, 2010

Escaped Death Twice, Then Acquitted

Yesterday I had to do legal research. I ran into an evidentiary question while preparing for next week's trial.

The issue: whether a non-testifying, 3rd party's criminal background can be introduced by the defendant at trial in an effort to show someone else committed the crime.

When I framed the issue I was immediately stumped. I had an instinct but no authority. I emailed Tom Gallagher in Minneapolis to ask him his thoughts. This is not an everyday evidence issue.

As we lawyers are trained to do, I went to a book in search of the answer. I have a very good library I have been piecing together.

I once heard said of lawyers: they don't know everything, but know how to find the answer.

I have two books that discuss Illinois evidence. Cleary and Graham's Handbook of Illinois Evidence is by far the most well-known and often cited in case law. As a back-up I have a West publication, Courtroom Handbook on Illinois Evidence.

Both books discuss evidentiary issues such as relevancy, witnesses, and hearsay (among others). The books lay out rules that are taken from current Illinois case law. The case citation is also provided.

I first looked in Cleary like always. Didn't find what I was looking for. But I found it in the West book. Under Section 404(b):3 it reads:

"Within certain limits, a defendant in a criminal case may introduce evidence that tends to show that another person committed the crime with which he is charged."

A-ha! My issue almost to the exact word. The case cited is People v. Cruz, 162 Ill.2d 314 (1994) I logged on to Westlaw to read the case. I needed to make sure the holding is applicable to my case.[I later found the case citation in Cleary. I just didn't see it the first time].

I was not pleased to find a 64 page opinion waiting for me. However, thanks to West's key digest system, it's easy to find the specific issue in the body of the case. This is a shortcut, however. I rarely use it. I like to read fact patterns. If I have to argue my position I have to be able to analogize and distinguish from the fact pattern found in the controlling case.

Some people don't do this. They cite from an evidence handbook or from another case for one proposition of law. But they never read the entire case to give the proposition context. You will look like an idiot if asked about the case you cited and you know nothing about it. You will lose credibility with the judge. That would be bad. Very bad.

Anyway, back to Cruz. This case was nasty. Horrible. Sad. Terrible. I don't have words for it. A 10 year old girl, home sick from school and alone, was taken from her Naperville home in 1983. She was sexually assaulted in ways I don't want to write about. Then she was bludgeoned to death and left in the woods, where she was found 5 days later.

I am not going to break down the case. Don't have time. But, Rolando Cruz and Alejandro Hernandez, were convicted by jury and sentenced to death in 1985. A third man was also tried but the jury wasn't able to reach a verdict. All three defendants were tried together.

As with all cases in which the death penalty is imposed, the Illinois Supreme Court reviewed the case. On review, the conviction was reversed and remanded for a new trial. I don't know the entire legal reason why. But it had to do with a severance issue. In other words, the Supreme Court ruled Cruz should have had a separate trial (I think).

Cruz was again convicted by jury and again sentenced to death. But his penalty was stayed because on review of the sentence (only) by the Illinois Supreme Court, three Justices dissented. Cruz appealed for another hearing and it was granted, thus the case I read today.

Tons of amicus briefs were filed from everyone and their brother. On this third appeal (the case I read) the court split 6-3 in favor of giving Cruz yet another trial, 11 years later.

The case is very complicated. And I only read it once. But Brian Dugan, who was already serving two life sentences for rape and murder, sort of confessed (not in court) to the crime Cruz was convicted of.

Dugan offered to confess officially if DuPage county wouldn't seek the death penalty. DuPage county wouldn't do the deal so nothing happened. Why would DuPage county make a deal? They already had two guys on death row. Case closed. 

There was no known connection between Dugan and Cruz. Dugan had kidnapped, raped, and killed at least two women. He also kidnapped and raped others, but let them go. They would all later identify him.

The evidence against Cruz was iffy. It was a lot of alleged statements to people in county jails and prison. There was no physical evidence connecting Cruz to the crime.

At his third trial, Cruz was acquitted on directed verdict. This happened in 1995. By then DNA was introduced and several witnesses recanted prior testimony. I didn't know this while reading this case. I had no idea where his case was in the system.

Before today, I had never heard of nor read the name Rolando Cruz. As I have quickly found out, his case has been rallied around by  the "anti-death penalty movement" crowd for a long, long time. I have written my views on the death penalty.

What I find most fascinating about what I read today was dissenting Justice Heiple's opinion. It was superbly written and amazingly persuasive. I love it when Justices take jabs at each other in opinions. They do it with such impressive wit.

The majority ruled the evidence of some of Brian Dugan's crimes could be admitted in Cruz's trial (my issue, sort of) even though Dugan, himself, wasn't going to testify. Justice Heiple disagreed vehemently.

Justice Heiple went through an exhaustive attack at Brian Dugan's confession. He called Dugan a liar repeatedly. He cited example after example of parts of Dugan's confession that were contradicted by the facts of the murder.

I haven't seen the room full of boxes in some basement where the entire record of all these trials is kept. But the Supreme Court had it all. Justice Heiple claims he reviewed all of the important stuff. And by the time I finished reading the dissent, I questioned if Dugan committed the murder.

Justice Heiple (well, his law clerks) did a great job of fact pulling. And had Justice Heiple been called to defend Dugan at a hypothetical trial for this murder, he would have gotten him acquitted. The refutation of the majority's conclusion based on fact was impressive. 

But as I was reading the dissent I kept asking myself "if he didn't do it, why would Dugan lie and confess?" He didn't know Cruz. He was already never getting out of prison alive, (two times over), plus a couple other multi-decade sentences. As Justice Heiple pointed out, "Dugan simply has no more time with which to pay his debt to society."

I kept reading and waiting for Justice Heiple to lay out an obvious motive for Dugan to claim guilt that wasn't his. There are yo-yos that walk into police stations and claim responsibility for some local unsolved crime. And the more media coverage, the more yo-yos. I really don't understand the psychology behind that. But, I am not a psychologist.

But this case was different. The State already had two people convicted and sentenced to death. The case was closed. Why bother if you didn't do it? It doesn't compute.

The reasons Justice Heiple came up with to show Dugan's motive to claim he did the crime were sadly weak. Dugan allegedly said he just wanted to mess with the State and take cases that weren't his. Also, once he claimed he killed little Jeanine, there was talk about him being somewhat of a celebrity in prison and even being asked for autographs. 

I don't know what the source of that last bit was. And I can't believe a sitting Illinois Supreme Court justice would put that in an opinion. Child rapers and murderers are not celebrities in prison. They are targets. And they are not asked for autographs. They are stabbed with pens.

In the end Cruz was eventually acquitted. DNA evidence excluded both Cruz and Hernandez, but could not rule out Dugan. Testimony was recanted. In other words, during the first two trials, witnesses for the State committed perjury. And the assistant State's attorneys probably knew it. In fact, the DuPage county State's Attorney probably knew as these prosecutions were brought during an election year.

DuPage county is very Republican and very white. Naperville is nice. It has good schools, big houses, wide streets, tons of shopping, a huge tax base, etc. But it doesn't have crime like this. When I first read the fact pattern, I was shocked to read this happened in Naperville. One wouldn't think something this heinous could happen out there. But it did. And the political pressure to make an arrest and convict someone must have been tremendous.

An assistant Illinois Attorney General assigned to fight an appeal from Cruz, resigned in protest because of the way the case was tried. She thought Cruz was innocent. Then Illinois Attorney General, Roland Burris, wasn't moved. This is the same Roland Burris now sitting in President Obama's former seat in the U.S. Senate. If you remember, Mr. Burris was not welcomed in the senate last year due to allegations of perjury and other wrongdoings.

As a side note, when I was in 4th grade (I think), I went to Roland Burris' office at the Illinois Capital building in Springfield for a field trip. At the time he was the comptroller of Illinois. Somewhere buried in a box I have a lovely Polaroid of the man.

How many innocent people have been executed because of cases tried this way? Perjury, prosecutorial misconduct, manufactured investigations and evidence, etc? This isn't an isolated case. And a sitting Illinois Supreme Court justice wrote there was more than enough evidence to convict Cruz...twice. He also had no problem with sentencing him to death.

Additionally, this same Illinois Supreme Court Justice wrote a scathing dissent declaring it was impossible that Dugan was the real culprit. I wonder how he feels about that opinion today. Because in 2002 better DNA testing showed Dugan was, indeed, the murderer.

Dugan's DNA was extracted from semen at the crime scene. In 2005, DuPage county formally charged him, 22 years after the crime. But Dugan had came forward claiming responsibility for the murder back in 1985 or several months after Cruz and Hernandez were convicted. All Dugan wanted was a guarantee DuPage county wouldn't seek the death penalty and he would confess, pleading guilty.

Did DuPage authorities ever investigate to learn if perhaps Dugan was the real bad guy and that they might have made a mistake? I highly doubt it. Again, they already had two on death row and a happy community.

Admitting that the system might have been wrong or that the trial was tainted with perjured testimony would be political suicide. Has anyone from a prosecutor's office ever been the first to claim the wrong person was convicted? Hell no. That's not how it works.

Did Cruz and Hernandez really need to be on death row for 12 years? Apparently political aspirations and prestige are more important than the lives of two innocent men. And no one wants to let the tainted trial cat out of the bag. By the time all of the government shenanigans were revealed, new elected officials were in office who could point their fingers at their predecessors.

The government doesn't re-open cases when they already have a conviction. The mindset of the government is that the defendant had his trial. The dissenting Justices also said the same thing. In fact one wrote, he didn't have a perfect trial because there is no such thing. But he had a fair trial. Two of them. End of story. Guilty. Guilty. Death. Death.

If Cruz's first two trials were fair, then our system is badly broken.

Dugan eventually entered a blind plea of guilty, meaning there was no plea deal made. Last year, Dugan was sentenced to death. But we aren't executing right now in Illinois, so Dugan is sitting in Pontiac, inmate number A60862. You can enter his name here and look him up.

And about Justice Heiple, he eventually became the Illinois Supreme Court Chief Justice;  until he ran into some problems and resigned

I take my hat off to the lawyers that never gave up on Cruz and Hernandez. It has to be damn near impossible to drum up passion and energy to work on a case when your client has been convicted and sentenced to death twice.

I have a feeling most of the leg work over the years was done by the Office of the State Appellate Defender. There are not a lot of attorneys at that office who handle death cases. The ones that do make up the Capital Trial Assistance Unit and they are dedicated. I met a few of them last October at a death penalty seminar in Springfield. Nice people but as you can imagine, quite haggered. In a good way, though.

The people that fight death penalty cases are not the same people that are politically and/or morally "anti-death." Although, I imagine those that fight the cases are probably not in favor of the death penalty.

"Anti-death" penalty folks don't want anyone executed. Death case fighters (lawyers) are those that don't want innocent people executed. Not every death case in every death state gets so much defense work put into it.

The innocence project doesn't take every case. They take the ones they feel the person on death row is innocent, thus their clever name. After all, probably most people on death row are, in fact, guilty. But as we have seen, some innocent people were put there by mistake and some on purpose.

I don't know how anyone could look at themselves in the mirror at night if they knowingly played any role in depriving someone on death row of a legally fair trial. The person looking in that mirror needs to be locked up, not locking other people up.

A perfect example is one of the cops in the first two Cruz trials. A lieutenant testified under oath, at least twice, that detectives immediately told him that Cruz said he had a vision of a little girl getting taken from her home, raped, and killed. Cruz allegedly knew facts about the case not disclosed to the public. Had that been true, that's pretty compelling evidence.

Turns out the lieutenant was in Florida when he claimed the detectives told him, in person, about Cruz's vision. The cops made it up. And a lieutenant corroborated their story by claiming they immediately told him about it. They all lied. They swore to tell the truth and then lied to a jury. Twice.

This case is an extreme illustration of some of the frustrations we defense attorneys face. If sworn officers of the law have no problems committing perjury, the system isn't fair. And if, as in this case, they were willing to lie about something this serious, imagine how insignificant a minor drug case is seen.

If you think lawyers are just money-hungry, heartless, BMW driving, $5 cup of coffee drinking're only partly right.

This story is a perfect example of lawyers that saved two lives. That's right. But for their tireless work, Cruz and Hernandez would likely have been executed before Governor Ryan stayed all Illinois executions.

How much money did these lawyers make? Well, the state guys make their very humble state salaries. Any of the attorneys from law firms did their work pro bono, meaning free.

This is a story about believing in a client and his case and never giving up.

I am still in awe.

As far as my position on the sleazy lawyer scale, I drive a Ford, have too much heart, make little money, and brew my coffee at home. However, I do own two Apple computers so I guess there is some yuppie lurking beneath.


Friday, February 19, 2010


I have received some comments about yesterday's post. So I want to make some clarifications.

I do not have a problem with citizens coming forward with information regarding a crime. Actually I encourage it. I do not consider someone that does this a snitch. Unfortunately, however, many around here do. And it can be dangerous.

What I call a snitch is someone that hurts someone else to better their situation. If you catch a case, man up and take the punishment. That's my opinion and I am entitled to it.

What's right or wrong, moral or immoral, just or unjust don't play a role in the gang play. I make no comment nor offer opinion. But in the court system we attempt to right the wrongs, apply morality, and be just. But sometimes the court system fails. And yesterday, in my opinion, it failed. Why? The wrong person is going to prison. But, by his own choice.

Unless you do my work, you cannot know how it feels to have a client whom you think is factually innocent being sent to prison. I can't even begin to describe how foul and awful it is.

You also can't know what it feels like to have to futilely attempt to console a crying, grieving mother. Did my hug and "I am so sorry" help? Did it make a difference?

And you don't know what's it like to doubt yourself by asking if it was simply an un-winnable case, or if I just wasn't good enough.

I imagine young doctors go through this. Eventually a patient is going to die. Naturally one's abilities will be questioned. But some people are just too sick to save. And some cases just can't be won. But which ones?

Last night I went and ran at my gym on a treadmill. And while running, I thought about yesterday's trial. I went back and forth. Bad case. Bad lawyering. Bad case. Bad lawyering. I put the case on as planned. It was a weak defense. But it was a plausible one. Was I perfect? No. Did I make mistakes? Several. But there is no perfect trial. That I accept.

Eventually the fact I hadn't slept or eaten much in two days caught up with me and I had to stop running. I had to eat something and chose bread.

This morning I woke up. I didn't feel really well. But I put on a suit and went right back to court. And next week, I will try my next jury trial. And the one after that. And the one after that.


Thursday, February 18, 2010

The Guilty Verdict

This afternoon my client was found guilty of possessing a firearm. This case has been discussed before.

I had bad facts. A gun was found in the trunk of my client's car. The only positive spin I could think to put on this was: since the gun was in the bottom of a closed gym bag in the trunk, my client didn't know it was there. If the case was to be won, it had to be by superb argument.

In Illinois, knowingly, is in the statute. One has to knowingly possess the firearm to be guilty. Knowingly can only be proven through circumstantial evidence. The state's argument was that since the gun was in his car he knew it was there. I argued that was too big of a leap.

There was also testimony from the arresting officer that my client allegedly said he bought the gun like it was. This was disputed.

I had to put my client on. My theory (the real story) was that someone had borrowed my client's car regularly for two weeks before the arrest. I had no other way to get that before the jury.

The client had a conviction in another state over ten years ago. I brought that out on direct. He testified he didn't know about the gun or the gym bag. He hadn't seen either. But when shown the gun and bag he thought he knew how they got there: the person borrowing his car. But he never told the police officer he had purchased the gun or knew anything about it.

He didn't tell the cops he thought he knew who put that gun in his trunk. Doing so might have implicated that person in another matter. And it was a close family member. My client took the case.

Today on cross-examination, the prosecutor pressed him to reveal who the mystery person was. My client would not tell them. He didn't snitch. And the jury may have punished him for it.

For what's it worth, my client, though a convicted felon, has more integrity and character than most people I have ever met. He got into trouble when he was young. He did his time. And he came out of prison positive and has worked ever since.

Everything was fine until this gun was found seven years later. This case has been pending for over a year. At no time has he even considered snitching. Personally, I applaud that. Has his refusal to reveal the true culprit frustrated justice? Academically, yes. But some things are more important. Like family. Like not being a rat.

I learned a lot from this case. I learned that bad facts can be hard to argue around. I learned that not every case is winnable. I learned that most people will believe a cop over a convicted felon, which isn't a shocker.

This was a case I wasn't supposed to win. But I never accepted that. David took down Goliath. While I knew the facts were working against me, I had some room to argue.

Now that I have lost, it feels horrible. I can accept losing at spades or video games. But losing a case that you have invested so much time, effort, and emotion into is terrible. It felt like a part of me died.

Maybe I am too much of an idealist, but I hate seeing people going away for the wrongdoings of others. That really bothers me and I don't think enough people care.

But the most valuable lesson I take from this case is that sometimes doing the right thing can hurt and cost dearly.


Tuesday, February 16, 2010

Pre-Trial Probation

I am preparing for a trial right now, thus I have to keep this one short.

I have written that few people make bail in Chicago. The bonds are just too high in my opinion. But for some that do, they can be assigned to pre-trial services.

What is or are pre-trial services? It's ran by the adult probation department. In effect it's like being on probation and in some cases intense probation. How? One on pre-trial services has to pay a monthly fee and check in monthly with an assigned officer. Some can also be ordered to take random drug tests. Curfews can also be set by a judge.

I have a client charged with his first felony. He's 17. His mother managed to scrape together bond money. He was assigned to pre-trial services. He cannot leave his house except to go to work or school. A probation officer told me this morning he's essentially on house arrest but not wearing the stylish ankle bracelet.

Not everyone that makes bond is assigned to pre-trial services. I have had clients on bond that had been to prison multiple times and simply had to show up to court and not get arrested again. That is typically the two big conditions of bail.

It seems like the young ones get hit with this arrangement (I can't think of a better word). I have had two prior clients (one 17, one 18) that were on curfew from 7:00 pm to 7:00 am. One of them had an extensive juvenile background and was already on probation. I never dreamed one could be locked down all day.

House arrest can be ordered as a condition of bail in lieu of having to pay cash. Very few are given house arrest, however. I don't understand having to pay cash and then still essentially being on house arrest. My client will have to ask for permission to leave his house to meet with me, his attorney.

Keep in mind, all of these pre-trial conditions are exactly that, pre-trial. In other words, they are still presumed innocent, have rights, and all that stuff we learned but doesn't seem to mean much in the real world. 

This all doesn't pass the sniff test. Not to me anyway. I don't like pre-conviction punishment any more than pre-conviction incarceration.


Thursday, February 11, 2010

Going To The Mountain

There was this movie not so long ago staring Val Kilmer. He played an FBI agent with Native American roots that he wasn't so proud of. He was assigned to investigate a murder on a reservation and had regular run-ins with the local reservation cop, played by Graham Greene (not the author).

In the movie, Greene's character tells the young, brash FBI agent that he needs to go to the mountain and get re-focused. For some reason that sentiment has stuck with me since I first saw the movie over 15 years ago.

I love mountains. Period. And the thought of sitting on a mountain somewhere enjoying the view and breathing the clean air appeals to me. The inner me. Now add some psyche self-administration to the scene, and I am there. 

When I was in college I went to Colorado a couple of times in late summer. I didn't really do much but hang out and hike up and down mountains. I was normally enrolled in summer terms every year, so my time in Colorado was usually the only time I got away. I loved sleeping outside and hearing the wind move through the mountains. Some of those nights produced, without a doubt, the best sleep I have ever had.

I slept on a beach in Hawaii once. That was good sleep too.

I find it odd that I can remember specific nights of sleep. And I can even remember specific naps that went very well too. The best nap I ever had was in 1990 on a hill overlooking Turtle Bay, Hawaii after playing Army all night and early morning. When I got to the top of that hill, I did the rucksack flop, lit a Marlboro light, and just took in the scene. I wish I was an artist so I could paint what I saw. I can still see it like it was a minute ago.

Where is this post going?

As of today, I have 5 jury trials set. I intend on answering ready for all 5. In March I have a murder (my first) on March 8, an attempted murder on March 15, and then another murder on March 23. All 3 of these can be won. I have good facts. 

I wouldn't say I am scared. I am not overwhelmed with fear and an impending sense of doom. Too much fear and you can't function. But just a little can heighten the senses.  I am acutely aware of what I am about to go through. I know I won't be perfect. I know I will make mistakes. But I know my cases front and back, cold.

The way I feel now is not entirely unfamiliar. 

Leading up to my first triathlon in 1997, I thought I was pretty cool training in 3 sports. I was a pretty fast runner, in comparison to other amateurs my age. My legs took to cycling immediately. But I wasn't a great swimmer.

When I up and decided to start doing triathlons, I realized I needed to learn how to swim. I could swim to keep from drowning. But I had never done laps in a pool. I bought a swimsuit and goggles one day and jumped in the pool. And I sucked. I could make it barely 25 yards without having to stop. Houston, we have a problem.

My first triathlon was about 30 days away and had a 1500 meter open water swim. If you really know me, you would say this was a typical Marcus move. Jump right in and figure it out as I go. Pretty much everything I have achieved in life worth mentioning was done this way. All guts and glory.

I started watching other people swim and quickly realized my biggest problem was breathing. I didn't know I had to put my face in the water and exhale. Once I saw it, I tried to mimic it. And I did. Eventually.

Within a couple of weeks I was swimming for real. It was slow, inefficient, and ugly. But I could keep going. Flip-turns were out of the question, however.

The day of the big race came. I drove to Indianapolis with two friends that had a few years of triathlon experience. The swim was in a reservoir. The water was dirty. I was so pumped up. I had everything ready. When the volunteer wrote my official race number on my skin with a huge black marker, I felt like I had arrived. After all, I was a triathlete. Sort of.

When my wave was called into the water I went in. Swim cap on. Goggles positioned. A few minutes later we were launched. I was surrounded by people, even though I purposely positioned myself in the back. I tried to relax and remember the mechanics I had been practicing.

But when I put my face in the water, something happened to me. I freaked out. I panicked. Completely. I couldn't see through the water like in the pool. There was no line at the bottom for me to follow. And I started to hyperventilate.

Then I rolled over and tried to backstroke a bit. That at least slowed my breathing down but I quickly realized I didn't know how to backstroke very well. I found a floating buoy in the water and grabbed it. I sat there in the water watching my wave swim way, way past where I was docked.

For a second I thought I had made a huge mistake. Maybe I wasn't cut out to be a triathlete. Damn. I wanted to be a triathlete though. Really bad. A canoe with a couple of lifeguards paddled up to me. "Are you ok? Do you want to quit?"

"Hell no" I barked. I pushed off from that buoy, put my face in the water, thought of that hill in Hawaii, and swam. I made it. All the way. I was never so happy to see the muddy edge of a body of water in my life. I spent the rest of the race passing people and saying "good morning" to every damn one of them. I was so happy.

6 days later, I did a 1/2 Ironman (1.2 mi swim, 56 mile bike, 13.1 mile run) in Muncie, IN. The swim went much better. And finally in 1999 I did the full Ironman in Florida. I spent the entire summer and early fall  of 1999 in Austin, Texas training for that race. It was so damn hot. By then I was a pretty good swimmer.

Every Saturday morning for about 5 months, I went on a 100 mile bike ride through the Texas hill country. And I did every ride alone. On Sunday mornings, I did a 20 mile run at Town Lake, also alone. During the week, I swam 3 times, rode 2 more times, and ran 3. I was in summer school and working part time.

What I remember from that summer was taking a lot of naps and eating constantly. I didn't train on Fridays but rather went to the movies and loaded up on popcorn and Coke. That was my rest day.

A decade later, I am in the same position looking a massive event in the face. Only this time, it's not one event, it's several. And this time, it's not ok for me to just be a competitive amateur. Professional triathletes make their money racing and doing well. That's their job. 

I was admitted to the Illinois Bar. I am now a professional of a different kind. This is what I do for a living. I spent almost 10 years in school to get here and a few years in the Army to help finance it all. The stakes are much higher now. People's liberty are in question. My performance and skill might well determine whether someone goes home, or goes to prison for the rest of their meaningful life.

I wanted to be a trial attorney. And I got what I wanted. Maybe. I am not yet a for real trial attorney. I have to answer the begging question of whether I have the stomach for it. I won that big (I thought big) jury trial in December but haven't tried a case since. I learned so much but there is so much more. Decades worth. A career's worth.

But secretly I have wanted nothing more than to be in front of another jury. It feels awesome! There is nothing in the world like standing right in front of 12 people and telling them a story. Your story. The client's story. Making eye contact with them all and engaging them individually.

It's an adrenaline rush. But also incredibly intimate. No other speech in life is like talking to a jury. Nothing compares. And you can't teach it. There are tons of books about how to cross-examine, how to argue, how to construct an opening and closing, and use persuasion.

I have yet to find a book that can really instruct one how to be in front of a jury. I can find no law review article where methods are listed for getting the jury to like you. And there is no seminar on how to make the jury want to give you the verdict you seek.

Charisma cannot be taught. And it cannot be bought. You either have it and know how to use it, or you don't. I have been told my entire adult life I have my father's charisma. My dad could sell ice cubes to an Eskimo and a space heater in hell. He's that good and impossible not to like. He can also be quite the b.s. er too. Again, hard not to like.

If any part of me is like my father, I hope it's the charismatic part. He's also extremely handsome too. I will gladly take looks from him too. Charismatic and good looking can be quite the combination.

Much like in 1999, I have been tirelessly preparing. Everyday. Reading. Watching. Studying. Practicing. Writing. Drilling. Only these days I don't sleep so well or eat that much.

In a few hours I am getting on an airplane to go back to the mountain. Well, technically it's a beach but there are mountains nearby. The next 4 days will be spent preparing myself mentally for what's to come.

And while preparing, I will keep the following clearly in mind:

"The key to a speaker's impact on his audience is sincerity. Before he can inspire them with any emotion, he must be swayed by it himself. Before he can move their tears, his own must flow. To convince them, he must himself believe. If the speaker grasps this, his is the most precious of gifts. He who enjoys it wields a power more durable than that of a great king. He is an independent force in the world. Whoever can command this power is formidable."
Winston Churchill, 1897

I know I can do this.


The Zone

On Tuesday morning I conducted a motion hearing at 26th & California. My client is being charged with first degree murder after an alleged failed car-jacking attempt. I am not the kind of lawyer to put murderers back on the street in order to make a buck. My client, I am sure, is innocent.

I filed two pre-trial motions. My motion to quash arrest was based on no probable cause. And my motion to suppress identification was based on, what I alleged was, an unnecessarily suggestive show-up. A typical show-up involves usually just one person (who is usually in custody) being shown to either a witness or the victim of a crime. You should contrast this with a line-up as seen on TV where there are at least 5 different people for the witness to view.

I did not expect the judge to grant either motion. I doubt judges ever toss out murder cases by way of a pre-trial motion. I do believe, however, there was a basis for both motions. They were not frivolous. But I wanted the chance to get some police officers on the record testifying about the case. I don't know why I thought to do this. Perhaps I read it somewhere. A great trial attorney whom I respect characterized my strategy as "old school".

In civil cases, long before trial, numerous depositions are taken. Depositions are given under oath. There is usually a court reporter there recording everything being said. When the case finally proceeds to trial, both sides already know what the testimony is going to be. How? They have already heard it, in the deposition. 

In criminal cases, we do not have the luxury of depositions and several years worth of discovery. We get, at most, police reports, written witness statements, and very limited grand jury or preliminary hearing testimony. As a defense attorney it's easy to predict the state's theory of the case: the defendant did it. But we don't know how it will be played out at trial.

Going into yesterday's hearing, I viewed it as a lot like a discovery deposition. I wanted to know everything that wasn't in the arrest report. This meant I had to ditch all methods of cross-examination, i.e. asking only leading questions and doing all of the talking versus asking very general, open-ended questions and letting the witness talk all they want.

Example: when you arrived on scene what did you see? Who was there? What were they doing? Where did you go? What did you do? What time was it? And so forth.

There were a number of people in the very large courtroom. My client's mother and several of his family were seated. Some of the victim's family were there as well. There were also several very experienced attorneys hanging around. Add a few random people, both assistant state's attorneys, and the total number of attendees exceeded 25 or so.

For me, that's quite an audience for a motion hearing.

Naturally, I was a bit nervous as I tend to get. My palms were moist and my throat started to dry. I never want to look like an idiot in court. Not in front of the judge, other attorneys, the client's family, or the client himself.

I had three officers there to call to testify as I wished. And so I did. I knew what I wanted to get done and set out to do it. This was in one of the very large courtrooms on the upper floors at 26th & California. The jury box is enormous. The bench high. Counsel's tables are large. And the ceiling has to be at least 20-25 feet high. It's just a huge room; probably almost as big as a full basketball court.

The witness stand is on the side of the judge's bench closest to the jury box. There is no lectern, per se. But there is a piece of furniture that looks like a small wooden park bench and stands as high as the bottom of my ribs. This is from where witnesses are to be questioned.

I  called the first witness. The questioning bench was all the way at the other side of the jury box or about 20-25 feet away from the witness. It was also very close to the prosecutor's table. The bench is not really heavy, but a little awkward. I asked the judge if I could move it closer to the witness and she allowed me.

I asked to move closer for a few reasons. First, prosecutors like to chatter among themselves when I am questioning. It can be annoying and distracting if I hear it. Second, I wanted to be closer so I could really look into the eyes of the officers during testimony. I wanted to get a feel for them and attempt to gauge how confident they were about their testimony.

Getting closer to the witness also did something else. It shut out the rest of the courtroom from my awareness. It was me and the witness. I was in a zone. I was so completely locked in to what the witness was saying that I heard nothing else. It wasn't until I tendered the witness and walked to my table that I asked "where did all of these people come from?"


Wednesday, February 10, 2010

First Defense Legal Aid

First Defense Legal Aid is a Chicago not-for-profit organization that provides 24 hour, free legal representation to people in the custody of the Chicago Police Department.

FDLA was created in 1995. It's creation was in response to community complaints about the treatment of those in custody in Chicago jails. I wasn't around back then but the stories are pretty horrible. I am not going to repeat anything I have heard, however, because I don't know them to be true factually. I will say, though, nothing I heard was beyond belief, knowing what I know.

By law a suspect can be kept in custody for up to 48 hours before they are either brought before a judge (after felony charges are approved) or are released. A lot bad things can happen in 48 hours in the wrong situation.

I have seen, in person and on video, the coercive interrogation techniques of CPD detectives. Having an attorney advise the suspect not to talk can avoid a lot of problems. This is especially true if the suspect is innocent. And some are. 

FDLA is staffed by two attorneys that handle calls during normal business hours, Monday through Friday. Volunteer attorneys, on a pro bono basis, are on call at all other times. A shift lasts 12 hours, either from 6:00 am to 6:00 pm or 6:00 pm to 6:00 am.

Most of the attorneys who volunteer are not criminal attorneys. I have been involved with FDLA since fall 2008. On some shifts I handle no calls. But on others it can be busy. The answering service attempts to pre-screen the caller to make sure FDLA can help them.

More often than not, the caller is the suspect's mother. Typically the suspect has been in custody for 12-24 hours and the police won't give out any information. Mothers tend to freak out when their son is in police custody and they don't know why. Or even worse, what's going to happen.

Once we determine someone is in custody pursuant to an active investigation, we go to the police station where the suspect is being held. We demand to see our client and eventually we are allowed to do so. Stating the CPD is not real nice to attorneys that show up in this manner is a slight understatement. Hostile would be inaccurate, but annoyed would not be.

Last Friday night I was called by a woman whose son was being questioned about a homicide. That's a pretty big deal. Homicide detectives are relentless.

I took the call at 8:00 pm and was at the police station shortly after 8:30 pm. It was snowing so I had to drive a little slower than usual. I announced myself at the front desk and showed my ID. The detectives were called and both came downstairs a few minutes later.

I told them I wanted to see my client. I was asked for credentials. I was told he had not asked for a lawyer. But they would tell him I was there and if he wanted to talk with me, I would be allowed to see him.

We went upstairs. My bar card and county attorney ID were photocopied. I was searched and led to the interview room. I knew the video and sound feeds inside the interview room were on and being recorded. All homicide interrogations have to be video taped by law.

I was prepared to ask them to be turned off but I didn't have to. A third detective walked up to the machine that controls the recording system. Right in front of me he inserted the key to the box, opened it, and turned it all off. The box was closed and locked.

To my surprise, I was handed the key to the box and asked to return it when I was done talking to my client. The detective unlocked the door and told me to knock when I was done.

The door opened and I walked in. It was a typical CPD interview room. Small. Maybe 8' x 7'. No windows. White walls with crap written all over them. A huge metal ring protruding from the wall where handcuffs can be attached. And a 12" wide metal bench attached to the rear wall. It doesn't run the entire span of the wall and couldn't have been quite 6 ft in length. That's it. No chairs. No table. No toilet.

You can also not turn off the very bright light from inside the room. And the smell was beyond description.

Sitting on the bench was the very tired looking client. He had been in custody for about 41 hours. I introduced myself and told him I was contacted by his mother. I told him the video feed was turned off but I still didn't want him to discuss anything with me.

He was advised not to speak with detectives after I left. At that point, I assured him there was nothing he could tell them that would help his situation. By then, they either had a case or they didn't. He understood. My entire conversation with him took about 10 minutes.

I knocked on the door. Within seconds it was opened. I stepped out. I told the detective there was to be no further questioning without my presence. My business card was handed to him and I said "I know how this works. You either have a case you can get through felony review or you don't. You're getting close to 48 hours, aren't you?"

He nodded. This detective was about as pleasant a cop I have dealt with. He was professional but looked frustrated and a little tired. I thanked him for his cooperation and left.

The client was released early Saturday morning without charge.


Monday, February 8, 2010

Melendez-Diaz Upheld by Supreme Court

Last summer the U.S. Supreme Court created a stir in the criminal justice system. In Melendez-Diaz v. Massachusetts, petitioner challenged the admissibility of laboratory certificates prepared by a crime lab employed to test and analyze seized cocaine. In Illinois, the State Police crime lab does such work. Long story short, the prosecution was putting lab reports into evidence and not calling the actual technician to testify about what was in those reports.

I had yet to run into this, but that sounds like a hearsay document to me.

But apparently this practice has been going on in many jurisdictions for a long time. In this case the challenge was brought based on the 6th amendment's right to confront witnesses against you. This is also referred to as the Confrontation Clause.

The Supreme Court agreed with petitioner Melendez-Diaz and reversed his conviction. The split in the court was quite interesting. The final vote was 5-4. Justice Scalia wrote the opinion for the majority. He was joined by Justices Stevens, Souter, Thomas, and Ginsburg. The dissenting opinion was written by Justice Kennedy and joined by Chief Justice Roberts, Breyer, and Alito.

That is a very strange split.

Melendez-Diaz was decided before Sonia Sotomajor was seated on the court. There was speculation Melendez-Diaz might be overturned since Justice Souter retired.

Briscoe v. Virginia was the case some thought would reverse Melendez-Diaz. The issue in Briscoe was whether or not the burden could be shifted to the defendant to call the state's lab personnel as a defense witness. And if the defense does not call the witness, does that remove the state's obligation to present the witness for cross-examination?

It appears as though the holding in Melendez-Diaz is firmly entrenched. The court authored a one page decision in Briscoe, vacating the decision of the Supreme Court of Virginia. The case was remanded for proceedings consistent with Melendez-Diaz.

We in the defense bar loved Melendez-Diaz and especially in light of the recent National Academy of Sciences scathing report of forensics.

I was at a death penalty litigation seminar in late October. One of the speakers, Marvin Schechter, was on the committee that interviewed scientists in numerous fields from all over the world and wrote the report. Mr. Schechter was a very engaging speaker, New York accent and all.

It was at this seminar that I first learned of the NAS report and the problems with crime labs and forensics in general. I had no idea it was all such a mess. 

The message to defense attorneys is clear. In light of the NAS report and the holding in Melendez-Diaz, we should be objecting to admission and vigorously challenging scientific evidence whenever possible.


Friday, February 5, 2010

Habeas Corpus and Guantanamo

The writ of habeas corpus has been around over twice as long as the United States has been a sovereign nation. It's origin can be traced back to England. Today, many countries around the world have something similar to habeas in their justice systems.

A habeas petition is simply a way for someone being incarcerated to have his jailer brought before a judge to justify his detention. I am not a habeas scholar. But the history of the writ in the United States is interesting, to me anyway. To me, habeas is an extraordinary, seldom granted last-ditch effort to make sure the petitioner got their day in court. And the correct court. 

I am currently reading a book titled "The Guantanamo Lawyers." Most Americans, and I am sure many lawyers too, never really understood what was going on at Guantanamo Bay detention center in Cuba. We were told the "worst of the worst" captured during the on-going war on terror were being held there. That's what we were told.

What most of us didn't know is that very few of the detainees were captured on a battlefield. We also didn't know that the vast majority of them were sold to us by countries like Pakistan. We were not told they were being held without being charged of any crime. We were also not told they had no right to an attorney. And most egregiously, we were not told the detainees had no access to any type of hearing to determine anything, let alone criminal liability.

From a legal perspective all of these bad guys were in legal limbo. The Bush administration's lawyers created the term "enemy combatant". And on advice from these same lawyers, President Bush decided the United States could do anything we wanted to with anyone labeled as such. The policy was put into effect and no one created much dissent.

Under President Bush's authority such people were denied the right to a hearing of any kind, the right to be made aware of any criminal charges they faced, and the right to an attorney. Every criminal defendant in the United States has the absolute right to all three of these.

Here is a little background to help my post:

In January 2002, when the first detainees were brought to Guantanamo, I was still an undergraduate student at the University of Texas at Austin. Like everyone else, I was very upset on 9/11. And I even supported military action in Afghanistan.

We were told the Taliban let Al Qaeda operate and train within Afghanistan. The Taliban regime wasn't really recognized as an official government, it was oppressive (especially to women), and they wouldn't turn over Osama Bin Laden at President Bush's demand.

Thanks to the media and post 9/11 hysteria, the Taliban were quickly demonized. It was repeatedly asserted by numerous members of the government and media, the Taliban were indirectly involved in 9/11. Some even claimed the Taliban knew well in advance of the attacks.

Like most Americans, prior to 9/11, I didn't know a Taliban from a telemarketer. But, also like most, I bought what was being sold through the media. 9/11 pissed me off. 

And so the United States joined efforts with the Northern Alliance to overthrow the evil Taliban. The Northern Alliance was a scattered bunch of small military factions, ran by war lords partly financed from the sell of poppy. Poppy makes heroin in case you didn't know. So, illegal drug trafficking is one way the Northern Alliance financed themselves.

The United States has a history of overlooking the wrongdoings of our allies. As long as you're against the same people we are, well, you're ok with us. My enemy's enemy is my friend. Remember our support of Iraq during the Iran/Iraq war? And then a few years later we turn around and claimed the same guy we said was a good guy, is actually a bad guy whose government we should overthrow. Was Saddam Hussein ever a good guy? As long as he was killing Iranians he was. I digress.

The CIA sent a couple of teams into Northern Afghanistan well in advance of any uniformed soldiers. These teams were armed with cash. And millions of dollars of it. The CIA officers bought allegiance from the various war lords. Even though most of these guys didn't like the Taliban, they wanted paid to help the American effort. And we paid them. But I doubt we got receipts.

We know what happened next. Bombs started hitting the dirt. Soldiers landed. And after about 2 weeks the Taliban was dethroned. This was all on TV in case you missed it. Now the US Military is running the country and looking high and low for Bin Laden.

Pakistan, the only country on the planet to recognize the Taliban as the official government of Afghanistan, began selling us "captured" bad guys. And we bought them for millions of dollars and flew many of them half way around the world to Guantanamo Bay, Cuba. Apparently we never bothered to verify that some, if not most, of the bad guys were actually bad guys before we cut the check.

I remember the first video images of prisoners at Guantanamo. They were in orange jumpsuits and were housed outside in what looked like dog cages. Most Americans didn't care about the dog cages. Terrorists want to kill everything American. Dog cages aren't so bad. However, human rights activists went nuts and eventually they were moved inside.

But I, like most everyone else, had no idea of their legal status, or lack thereof. And though I was starting to distrust the Bush administration, I still bought the story the "worst of the worst" were at GTMO.

It didn't take long for some attorneys (not just Americans) to figure out exactly what was going on down there. Thus, began the fight.

In early 2002, the Center for Constitutional Rights filed two habeas petitions on behalf of two detainees at GTMO. The petitions were denied by a federal district court on jurisdiction grounds. Cuba wasn't the United States. The appellate court affirmed. Over the Bush administration's loud objections, the U.S. Supreme Court agreed to hear the case in late 2003. Oral arguments were held in the spring of 2004 and the decision came down in June 2004.

Rasul v. Bush held that the GTMO detainees did have habeas rights and therefore access to federal court. The U.S. Supreme Court rejected the Bush administration's bold assertion that it could run a prison with no judicial oversight, even in Cuba.

A Republican majority congress responded.

The Military Commission Act of 2006 stripped habeas rights from non U.S. citizens that were determined to be enemy combatants or were awaiting a hearing to determine same. 

Combatant Status Review Tribunals were created to determine if a detainee was, in fact, an "enemy combatant." If one was an enemy combatant, then per the MCA, they had no habeas rights.

The rules governing such reviews (I can't bring myself to call them hearings) were unlike anything seen in the United States. The rules of evidence didn't apply and the government's evidence was presumed to be genuine and accurate. And many didn't have attorneys. Given such a system, however, I am not sure what good having an attorney would have done.

The Guantanamo lawyers didn't give up, however. A case challenging almost everything about Combatant Status Review Tribunals made its way to the U.S. Supreme Court.

In 2008, a 5-4 majority in Boumediene v. Bush held that detainees at Guantanamo were entitled to protections of the United States constitution; enemy combatant or not, they had habeas rights. Writing for the majority, Justice Kennedy wrote that the MCA was an unconstitutional suspension of the writ of habeas corpus. If you're into constitutional law, the decision makes a nice read.

As an attorney, reading the "Guantanamo Lawyers" is shocking because other American attorneys actually legitimized the stripping of the detainees legal rights. I am actually ashamed. And as an American, these same actions go against everything I was raised and trained to believe was great about my country. 

I feel honored, however, to call myself an attorney in the same vane as the small dedicated group of lawyers that fought like hell on behalf of our constitution. And I am pleased the United State Supreme Court did the right thing in the end. I wish the decision would have been unanimous, but 5-4 works for me.


Wednesday, February 3, 2010

Plain View

In my practice, I regularly handle cases where  the 4th Amendment right against unlawful searches and seizures was implicated. Or in some cases I argue it should have been implicated. My use of the word "implicated" means that the right either was or should have been in effect at some point.

Most people know 4th Amendment basics. The cops can't bust down a door and search the house without a warrant. Also the cops can't arrest someone 'willy-nilly'. This is where probable cause comes in and that's very messy and complicated.

The "plain view" exception to the 4th Amendment was judicially created. The most often cited case for this proposition is Coolidge v. New Hampshire. The exception is pretty basic: when a law enforcement officer is able to detect something with one or more of his senses, while lawfully present in a position to use those senses, any detection does not constitute a search under the 4th Amendment.

In plain English: if the cop has a legal right to be there, anything he sees is fair game. Traffic stop, search warrant, etc.

I have been witnessing and hearing about a lot of cases where local police make a routine traffic stop and just happen to see contraband in plain view. Guns on passenger seats, drugs in open bags on the back seat, and so on. How incredibly fortunate.

The 2009 U.S. Supreme Court case, Arizona v. Gant , stopped cops from searching vehicles after giving traffic citations, generally. I had a case last year where my client was arrested for driving on a suspended license. He was removed from his car and placed in handcuffs. The cop searched the car and found less than 1 gram of cocaine under the driver's seat.

When I got this case, Gant hadn't been decided yet. Up until Gant, vehicle searches following arrests like my client's were valid. Gant changed that and I filed a motion to suppress and cited Gant. This was a perfect Gant motion. This was exactly the type of case Gant was meant to address.

At the suppression hearing, the arresting officer testified the cocaine was in plain view. What? The arrest report didn't read it was in plain view and the officer did not testify at the preliminary hearing it was in plain view. I impeached by omission and prior testimony. The judge sided with the officer ruling Gant was inapplicable due to the plain view exception.

I was not thrilled. And now all of these plain view arrests are a daily occurrence. Coincidence? I wrote last fall that inventory searches would be the end run around Gant. I didn't anticipate contraband would start popping up in plain view all over the place. Silly me.

The other common theme is the furtive movement made while the officer is walking up to the car. Furtive. Such a cop word. Like tendered. "Suspect tendered unknown amount of US currency for a clear plastic bag containing a white powder, suspect heroin." I have heard that exact sentence more times than I can count.

I guess in Chicago, the bad guys aren't smart enough to hide things they know they shouldn't have. Or if they do hide something, they wait right until the cop is looking in the window to do so.

That's how it happens around here. Well, that's the story anyway.


Monday, February 1, 2010

Sweet Dreams Are Made of...

For some time I have been having a sleeping problem. And when I do sleep I have very violent dreams that usually center around drugs and guns. In my dreams I am often the drug user or the person with the gun. But for some reason I can never fire a gun in a dream. It always malfunctions like the trigger doesn't work.

These dreams are very real. But, I can sometimes recognize it's a dream during the dream. I have had horrible nightmares where in the dream I am hoping it's a dream. They are so vivid and graphic that I often awaken feeling exhausted. That kind of sucks too.

Some people have Alice in Wonderland dreams. Some people dream of loved ones, dead and alive. Some people dream of their past. I dream of violence and despair. Many nights when I wake up from my dreams I write down a little bit about the dream.

In the morning I try to read my scribbling and make sense of it all. At times I think I am going mad because of all the violence I dream of. I am starting to think something organic in my brain changed permanently and I will never again be normal. This assumes I was ever normal though. 

But last night my brain took a vacation. Sort of. The following is what I was able to remember this morning by piecing together my notes from last night. Here goes (I am not making any of this up):

I was in the military again and my unit was going to the field. I was still wearing a suit and felt rushed because everyone had already geared up and was ready to go.

The interesting part is that my unit wasn't going to the field and my unit wasn't like my old Army company. Instead I was part of the Star Wars rebellion and the field was all of space. At some point I realized I was in the Death Star preparing for battle with the evil Empire.

All of the rebel forces around me were running. On my notepad I wrote they were hiding, which is odd. Rebels fight, not hide. Maybe they were setting up an ambush. I don't know.

Now here is where it gets weird. I didn't see Darth Vadar in my dream. In fact, none of the characters from any of the 6 Star Wars films were in the dream. Well, except one. Who was it? It was none other than Boba Fett, the baddest ass bounty hunter in the galaxy. In case you forgot, Boba Fett delivered a carbon-frozen Han Solo to Jabba the Hutt. "He's no good to me dead" Boba said to Lord Vadar as Han was removed from the carbon freeze as solid as a asteroid.

I am not a Star Wars fanatic. I just happened to be the right age when Episode IV was released back in 1977. I had some action figures. I even had a Millennium Falcon. And for a while I wanted to be a Jedi when I grew up. Hell, I still do. Jedi's kick ass. If I could move objects by just pointing at them, I wouldn't need to practice law. Would I?

In my opinion the first two movies were the only ones that mattered. Return of the Jedi was full of forested muppets. Eh. The three recent films, while nice to look at, just didn't have the "umph" the first two did. Yeah, watching Yoda fight with a light saber was nice. And Darth Maul was a pretty solid villain. But I couldn't swallow Ewan McGregor as a young Obi-Wan Kenobi. And that little kid that played Anakin Skywalker was too damn cute to grow up to be Darth Vadar, the blackest brother in the galaxy. No way.

And there I was in my dream, running past Boba Fett. Yes, running past him. I wasn't scared of him either. And that's probably because in my dream he was shorter than me. Yep, even with the helmet on, Boba was probably only as tall as Tom Cruise.

The question I have is: in the dream which side was Boba Fett on? The Rebellion or the Empire? He had no loyalty. He was motivated only by money. And why of all the characters in all 6 films, was it Mr. Fett that made an appearance?

If that was my subconscious self telling me that in reality I am just some short, money-hungry, hired gun with no loyalty...I am guess I am screwed.

You May Be Sentenced To Death if....

Illinois is a death penalty state, one of thirty-five. Former governor George Ryan placed a moratorium on executions in 2000. After leaving office, he was convicted in federal court for various corruption-related crimes. Inmate Ryan is currently in a federal prison in Indiana. But that's besides the point. In 2003, before leaving office, he commuted every death sentence to life without parole (167 total), thus clearing death row in Illinois.

1,193 people have been executed in the United States since 1976, and Texas accounted for 449 of them. Illinois only killed 12. Virginia is second only to Texas with 105 executions. Together, Texas and Virginia account for almost half of all American executions since 1976.

Executions are so regular in Texas they usually don't make the news, unless for some reason it's stopped. I lived in Texas from 1998-2002. During that time 145 people were executed. I don't remember hearing anything special about even one of them.

Executions also have a regional trend. 985 of the 1,193 (83%) were executed in the South. The Midwest accounted for 137 (11%) , the West 67 (6%) , and Northeast a meager 4 (.003%). When I look at these figures I can't help but see the huge American map on presidential election day where states are marked either red (Republican) or blue (Democrat) as poll results come in.

The South is almost entirely red states. While Florida can flip-flop, generally the rest of the rebel states are always red. Generally. The West and Northeast are typically blue and the Midwest is usually split. And the execution numbers clearly show, red states execute way, way more people than blue states. I am not going to make a political statement.

Illinois is sort of strange. Chicago, for the most part, is blue. The rest of the state is red. More often than not we have a Republican governor. The last one is in prison. His Democrat replacement, Rod Blagojevich, might be heading there himself. But I know Rod's lawyer so I doubt it. He's really good.

After the Ryan commutations, a lot of anti-death penalty advocates thought the Illinois legislature might take the death penalty off the books. They were wrong. 

Since 2003, ten people have been sentenced to death. I think the execution moratorium is still in place, so the legal status of those sentenced to death is probably complicated. And no one has been executed in Illinois since 1999.

Tonight I was reading the Illinois homicide statute, 720 ILCS 5/9-1. Yes, my life is so lame that I sit at home on Saturday nights and read statutes. I was amazed at how many aggravating factors are listed that, if proven, make the case death penalty eligible.

Here they are (I am going to cut out a lot of the extra words for the sake of clarity):

1. Victim was a police officer or fireman. 2. Victim was an employee of the Department of Corrections. 3. There were 2 victims, i.e. double homicide. 4. Murder was the result of hijacking airplane, bus, train, or ship. 5. Defendant was hired to kill the victim, i.e. hit man. 6. Defendant killed victim while committing another felony. 7. Victim was under the age of 12.

8. Murder done to prevent victim from testifying in court or participating in an investigation. 9. Murder committed while Controlled Substances Act was violated. 10. Defendant was in prison when murder occurred. 11. Murder was conducted in a cold, calculated, and premeditated manner. 12. Victim was a paramedic or other emergency medical technician.

13. Defendant is a drug kingpin. 14. The murder involved torture. 15. The murder was a drive-by shooting. 16. Victim was 60 years of age or older. 17. Victim was disabled. 18. Victim was volunteering doing community policing. 19. Victim had a protective order against the murderer. 20. Victim was a teacher on school grounds. 21. Murder was related to terrorism.

Those are the official aggravating factors. If even one is present, the state can seek the death penalty. In Illinois, one has to be a member of the capital litigation bar to defend a death penalty case. Apparently the Illinois Supreme Court got tired of dealing with death penalty appeals where there had been severe ineffective assistance of counsel. Now, there are standards one has to meet to defend a death case.

The requirements are not too lengthy. Basically the lawyer must have 5 years criminal litigation experience, tried at least eight felony cases of which at least two were homicide cases, and have attended a 12 hour seminar dedicated to death penalty litigation.

Often private lawyers are appointed by the court to defend a death case. The Illinois Capital Litigation Bar is not that large. I doubt there are much more than a few hundred lawyers in the state that are certified. I estimate there are about 80,000 licensed attorneys in Illinois. So, it's a select crowd.

Appointed lawyers are supposed to be paid out of the Capital Litigation Fund and have to submit billing, receipts, budgets, etc. An appointed attorney told me earlier this year that Cook county owed him $60,000 for a case I watched him lose. Ironically, by the end of the case, the state's attorney had "de-deathed" the case. What this means is that the state decided not to seek the death penalty after all. I wonder if he has been paid?

If the defendant doesn't have or is not assigned private counsel, two public defenders are assigned to defend the case. The court also makes money available for the hiring of experts. Cook county assistant public defenders assigned to death cases are highly experienced, seasoned members of the Homicide Task Force.

Though not yet qualified by experience, I attended the 12 hour seminar last October in Springfield. The seminar has to be attended every two years to remain certified and it's held twice a year. Once in Chicago, and once somewhere downstate. Last October, the downstate program was in Springfield, my hometown.

It was a fantastic seminar and I learned a lot. I saw a lot of attorneys I recognized from Chicago and took the time to formally introduce myself to a few of them. I like the old school guys that have been doing the work since I was playing baseball in Little League. Likewise, when I was in the Army, I had a deep affection for the Vietnam vets. And I am proud to have served with the last of them before they retired. I guess I feel the same way now. Often in awe, always humble, and extremely respectful.

I was amazed to learn just how much work goes into a death case. A death penalty trial has three phases. Phase one is guilt/innocence. Phase two is eligibility, where the jury determines if an aggravating factor was present. And phase three is the actual sentencing phase.

There was recently a death penalty trial in Chicago. It was related to the slaying of seven employees of a Brown's chicken in Palatine in 1993. The case was known around the courthouse as "Brown's chicken." One person was tried and convicted a long time ago. The 2009 trial was for the co-defendant, James Degorski.

Voir dire (jury selection) took one week and they even worked on a Saturday. The guilt/innocence phase took about a month (he was found guilty), death eligibility only took one day, and the sentencing phase lasted three weeks. Looking at a calendar, voir dire started around August 10, 2009 and the jury decided not to execute him on October 20, 2009. Two jurors saved his life. The other ten wanted him dead.

The death penalty is a polarizing issue, much like abortion. Oddly enough, most anti-abortion folks are pro-death penalty. A guess a life isn't a life after all. Again, not going to get political. Or God forbid, religious.

Not that anyone cares, but I have no fundamental objection to the death penalty. Some people just deserve to die...assuming they're guilty. And therein lies the rub, it's not a 100% accurate system. And it never will be.

The statistics of those exonerated and saved from death row cannot be ignored (about 139). The Innocence Project has done some very outstanding work. This highly dedicated group has freed not only those condemned, but many serving life with no parole. Kudos. Keep fighting the good fight. It needs to be fought.

So while I support the death penalty in principle, I cannot do so in practice. It's a punishment for which no margin of error can exist in its application. History has shown that it does. And that's where I draw the line.