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.



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