Tuesday, March 30, 2010

Strange Calls

Yesterday the world got a bit stranger and not for the better.

I was called by a woman whose son was arrested and charged with being a felon in possession of ammunition. The police blew off the door to the house because they had a search warrant. At least one officer was armed with an M-4 assault rifle.

A thorough search of the house led officers to some bullets in the mother's room hidden behind her dresser.

During the execution of the search warrant, officers shot and killed her toothless bulldog because he was barking.

All of that and the State will still have to prove the son knew the ammo was in the house. Doubtful they will.

The second strange call came from another woman. She told me she was charged with domestic battery. I immediately found this odd since it's rare a woman is charged with this crime.

But, women can be aggressive too. I was shocked to learn that she was arrested and charged with domestic battery for giving her 8 year old son a whooping. The child's school called authorities and DCFS got involved.

This woman sounded very sensible on the phone. Her son did something that would have gotten me spanked as a child. She went to hit him with a belt (I had worse) and he put his arm down and turned in an effort to frustrate butt impact.

Instead of hitting him on the rear end, she got his arm instead. And it left a mark that school officials saw. The child was taken to the doctor. However, the doctor couldn't see anything on the boy's arm.

Why? And why?



Thursday, March 25, 2010

The Client's Best Interest

Today I ran into a situation where it wasn't clear initially as to how I should handle it.

This case involved 2 young men arrested and charged with drug dealing-associated crimes. My client is in custody. The other guy, the co-defendant (co-d), is on bond.

The co-d's attorney couldn't be in court today because he's on vacation. Today was the arraignment. I was asked to step up for the other attorney and arraign the co-d.

My client wanted to make a plea deal. The co-d's attorney wants to litigate. It's common to litigate cases when the client is on bond. And it's also common that guilty pleas are exchanged for probation at the first opportunity.

In order for my client to plead guilty he would have to swear to facts that implicate the co-d. That was the deal. Take it or leave it.

Time out: whenever a defendant pleads guilty, a factual basis of guilt is read into the record. After the prosecutor reads the factual basis (which is usually just the arrest report), the defense attorney (moi) stipulates to the facts. This means that I agree to them. Then based on those facts the judge finds the defendant guilty.

Having the defendant swear to those facts is very uncommon. I will explain why this was done in a minute.

Before I even told my client about the plea offer I realized how problematic this could be. Was my client hurting the co-d's case by swearing to facts that could establish his guilt? Was I screwing the other attorney by hurting his client's case?

If you wonder how swearing to the facts might be problematic for the co-d, here is an explanation. In the off-hand chance the co-d goes to trial, the State could subpoena my client to testify against him. And even if he didn't offer any new testimony, he would be forced to admit, again, the facts. These facts are pretty compelling evidence against both of them.

The reason the State made him swear to the facts was that it put my client under oath. This way if he tried to reverse himself at trial, he would face felony perjury charges.

I pulled a fellow defense attorney outside the courtroom and ran this by him. He knew right away the spot I was in. It was decided that I had to inform my client of the State's offer and explain what it could mean. Then it would be his decision to take it, or leave it.

I would have preferred to get a quick court date (short date) so that the co-d's attorney and I could appear together. The problem was that he asked me to continue his case for a little over a month. Damn. My client has already been locked up for 60 days. He's not a gang banger and has no one watching his back in the jail.

At the time this was happening, the co-d's attorney was in an airplane flying somewhere and not reachable. He also knew my client was likely going to plead out. 

My analysis of the problem was to put my client's interest first. I owe him a professional and ethical duty. That duty, however, does not extend to his co-d or the co-d's attorney. My client wanted to cop-out for probation. 

I also felt that I could not arraign the co-d because of a potential conflict. Conflicts are rarely ran into in criminal law, but this didn't feel right. Off the record I explained this conundrum to the judge. I requested that I not appear on the record on behalf of the co-d. I told the judge I would prefer if the co-d continued his own case.

And that's what happened. My client was arraigned, the co-d's arraignment was continued. Soon after I sat down with my client and laid out the entire offer. I explained how problems could arise in the future. I answered his questions.

Then he made the choice.



Tuesday, March 23, 2010

Chicago Courts

The city of Chicago has a lot of courthouses. The police department splits the city into 5 areas. Within the 5 areas are numerous districts. We do not have precincts. At each area headquarter is a very large police station. All of the detectives that are assigned to the area have offices at the Area HQ.

Also at each Area HQ are two courtrooms that are entered separately from the police station. One courtroom is for misdemeanors and one for felonies. Most misdemeanor cases never make it further than here. Very few misdemeanor cases go to trial and actually most are dismissed because either the police or complaining witness don't show up to court.

Misdemeanor bench trials are handled at the branch courts at area HQ's. The rare misdemeanor jury trials are held at 555 W. Harrison. The courthouse at Harrison is where all of the domestic violence cases are sent. Since I don't do domestics, I have been to Harrison less than 10 times.

Depending on which district the arrest occurs in dictates which courthouse gets the case. Obviously an arrest in Area 5 will be sent to one of the courtrooms at Area 5. Well, unless it's a domestic, sex crime, or murder.

If the case is a felony and the State proceeds by way of preliminary hearing, this takes place in the area felony courtroom. Even if the case is going to be indicted, the defendant is still bussed to the courthouse, brought before the judge, and told the State is asking for a continuance. About a week later, they are brought back and told their case has been superseded by indictment.

There is also one more felony preliminary hearing courtroom in the main courthouse at 26th & California. I have no idea how or why cases get sent here. But they are always drug cases, that I know.

There is also a special preliminary call for sex crimes and homicides. It also takes place at 26th & California but at noon. The courtroom this call is held in is where felony cases are assigned to their trial courtroom every morning by the presiding judge.

If the case makes it through preliminary hearing (and most do, but for minor drug cases), the defendant is told their case has been transferred to the presiding judge at 26th & California. The next court date (the arraignment) is always 21 days later and as an attorney I normally cannot budge this date. It's set in stone. It causes problems.

It gets a little confusing at this point. Family members and defendants think their next court appearance is in room 101 on the date the preliminary judge gives them. But in reality the defendant never appears before the presiding judge.

The presiding judge calls the case and just says which judge was assigned the case. If the defendant is on bond, he does not have to be there when this happens.

If the case got assigned to one of the 31 felony trial courtrooms at 26th & California, the defendant is on the trial call for that courtroom that same day. If in custody, the sheriff takes them to their assigned courtroom.

The courtroom assignments actually happen 2 days before the presiding judge reads off the case. This is how the jail knows where to take everyone. I either call the clerk's office or look in the computer myself to see where my cases are headed.

I let the family and/or defendant know to which judge the case was assigned. And if I want to SOJ (substitution of judge), I can have the motion prepared.

There are 8 other felony trial courtrooms for city of Chicago cases. But they are in two suburban courthouses. 4 in Skokie and 4 in Bridgeview. The judge assignments are totally random (I think). If the defendant gets assigned to one of these 8 courtrooms, the next court date is a full 7 days later.

If this sounds confusing to you, imagine how it is for a family. And imagine how much of a pain it can be for an attorney. As I wrote earlier, we cannot pick the arraignment date. And we don't know where the case is going to get assigned until 2 days out.

The result is that I spend a lot of time in my car driving around to get to court. I have had days where I had a preliminary at 9, and then a case in Bridgeview (south west) and Skokie (north). It happens. You set a case in Skokie, then get hired for a case that ultimately ends up somewhere else on the same day.

Fortunately, most of the preliminary hearing calls start at 9 and the trial courtrooms start at 10. I have had mornings where I had to appear in 4 different court houses. Driving all across the county, through the city, in traffic is tiring.

It seems like it's these crazy days that one of the trial cases has a short call that day and by 10:45 the prosecutor is blowing up my phone wondering where I am. I absolutely hate feeling rushed. I can't stand it. It's almost as bad as not taking a shower. I just don't like it. I normally get to court very early so I can remain calm. If I am rushed I start freaking out and get stressed.

The reason is that the military taught me to never be late. And if I can help it, I never am. In the Army, we set our clocks 10 minutes fast so we were always early. I still arrive early for most every appointment, even dentist visits. I am just that way. I always will be.

I wake up pretty early in the morning. I like to take my time getting ready. I am a morning person, but need my coffee. And plenty of it. Lots of cream, lots of Splenda.

I have at times wished there was one big massive judicial complex for the entire city. But that wouldn't be as fun. Each courthouse has its own character, design, employees, defendants, and smell. They are all in different neighborhoods as well. Though all of them are considered city of Chicago criminal courts, no two are identical.

Traffic cases are somewhere else entirely. And I don't go there. 



Friday, March 19, 2010

The Sentencing Hearing

I was dreading yesterday for an entire month. The date loomed on my calendar like an albatross. I tried not to think about it, but it was always there. The sentencing hearing for the trial I lost in February was set for Thursday March 18, 2010.

If you read the prior posts regarding this case, we already knew the judge was going to sentence my client to the minimum of 6 years. Before yesterday I had to prepare a motion for new trial. It was my first such motion.

Apparently it's standard practice to draft this motion when you lose. They are rarely granted but any issues raised in the motion are preserved for appeal. Failure to mention an issue in this motion waives the right to appeal it, in most cases.

I didn't sleep well on Wednesday night. There is still a bad feeling in the pit of my stomach over this case. In my opinion, the wrong person is going to prison. But as I have written, it's by his choice.

I saw my client's mother first. She told me he was doing pretty well. That was nice to hear. He was a complete wreck the last time I saw him in the holding cell after his guilty verdict. He had been on bond for almost a year. Suddenly being taken back into custody has to be upsetting.

I went back to see him. He smiled when he saw me. Through the bars we shook hands. It felt odd. Things were different between us. Or at least I felt so. I feel in ways like I failed him. Seeing that he was doing much better about his situation than I was made me question why.

He's going to prison. For several years. I still go home everyday. Why is he smiling?

If I didn't give a hoot, maybe I would smile too. But I question why I do give a hoot. Am I so super compassionate that it breaks my heart that he's going to prison? Compassionate, yes, to a point. But not so much to account for how I feel. Not entirely.

Was my ego shattered because I lost the trial? Has my ego taken such a puncture and caused more internal damage compared to someone going down for some years? Have I made myself out to be the big loser in this case? I hope not. Am I in a worse place than he is? Probably not.

Of course I feel like I could have done a better job. Perhaps I could have argued the case differently, or used more effective analogies in attempting to reach the jurors. I admit my professional pride feathers got ruffled a bit.

Does any baseball player not feel bad after a strike-out? Or a pitcher that has a bad day and gives up 5 runs in the first inning? The difference is the result of professional failure in baseball doesn't cost someone their liberty.

I may need to switch professions. The Cubs always seem to be looking and I live within walking distance from Wrigley Field.

I did raise a genuine evidentiary issue in my motion. The judge denied it. We moved into sentencing. As promised, the sentence was 6 years. He will do less than 3 years real time if he behaves himself, which he will.

The judge said good luck. He turned, smiled, and waved at his mother and wife. We walked out of the courtroom together followed by the sheriff.

He turned and gave me one of those man-hugs that feel awkward. "We fought our asses off. Thank you" he said to me with a huge smile and a firm, parting handshake.

I told him to write me if he feels like it. He said he would. I rode the elevator down with his family. They thanked me and asked some questions that I tried to answer. On the ground floor I had to stop to take a phone call and they went ahead without me, but turned to wave good-bye.

As I stepped outside, I was blinded by sun and the gentle warmth of coming spring.

And then I smiled. Slightly.



Wednesday, March 17, 2010

Client Comedy

I was recently hired to represent a young man charged with attempt first degree murder among other things. He is alleged to have shot another young man in June 2008. My client was 16 at the time and has been in custody ever since.

After almost 2 years, the defendant and his family decided to fire the attorney. I filed my appearance on the next court date but had to come back a week later to get discovery. So far nothing has been done on this case by way of pre-trial motions. There's an offer of 13 years at 85% on the table, so about 11 years of real prison time.

If convicted, the minimum would be 31 years, also at 85%.

I still don't know what I am going to do with the case. I immediately sent out a number of subpoenas.

Monday in the holding cell, my client asked me if I could set his next court date 60 days out instead of the regular 30. I asked why?

Apparently, having to go to court every 30 days is inconvenient. He has to wake up early on court days.

His next court date is in 30 days.



Tough Choice To Make

What would you do if....

Your cousin was murdered last Saturday night. The murder made the paper. Then the next morning the people the street knew committed the murder rode by in a car and waved a couple of handguns at you.

You are 19. You are not in a gang. You are not a thug. You neither use nor sell drugs. You are a high school graduate attempting to enroll in community college. But, you live in a violent area.

Assume you fear for you life. Do you (a) do nothing and maybe get ambushed and killed, or do you (b) buy a handgun and carry it on you for protection while knowing it's illegal and getting caught with it could send you to prison for a few months?

This is a very bad situation to be in. Dead and innocent, or alive and a convicted felon. Either one isn't good. 

Now many of you (assuming many read this), will think of other solutions to the problem. And there may well be. To you that is. I wish there was Alternate Dispute Resolution in the hood. I really do. I would volunteer to mediate every weekend. All day Saturday.

Can't we all just get along? How about discussing the problem? You talk, I listen. Then I talk, you listen. It's called communicating, which can lead to resolution. Resolution prevents acts of violence. I would hope so, anyway.

In this day of text messaging, young people no longer know how to actually talk to each other. Speaking is becoming a lost skill. Too often kids speak with weapons.

Unfortunately, weapons don't fire words you can later take back.

In the scenario above, this person is in quite a pickle. What happens if he's armed and the bad guys come shooting at him? I assume he pulls out his gun and shoots back. That's why he has the gun in the first place. Right?

If he hits nothing, the other party is on notice this guy is packing. Not sure where it goes from there. But what if he did hit the bad guy? If he shoots him and he dies, he just caught a murder case. If the bad guy survives, well it's only attempt murder, minimum of 31 years if convicted.

What about self-defense? If someone shoots at me, shouldn't I be able to shoot them back? Technically, yes. But since you're not supposed to have your gun in the first place, the State's Attorney's office is going to charge you anyway. Let the lawyers sort it out later.

If it were me, I would just join the military and get out of here. 



Sunday, March 14, 2010

Thaddeus Jiminez

Until yesterday, I had never heard of the name Thaddeus Jimenez. I doubt any of you have either. He was tried in Chicago as an adult for murder when he was 13. The Cook County State's Attorney prosecuted the case. He was convicted and sentenced to 50 years in prison.

He was given a second trial due to errors during voir dire in the first trial. He was convicted the second time, but sentenced to 45 years. 

The murder occurred in 1993. It appeared to be gang related. There was evidence linking a different person to the killing. The evidence was an audio recording of him confessing. The real murderer was 14. CPD detectives were given the audio recording. It was ignored.

TJ's trial judge ruled the recording was inadmissible. But it shouldn't have even gone to trial and been an evidentiary issue.

Not surprisingly, there was no physical evidence tying TJ to the shooting. The entire case was based on eyewitness testimony. As it turned out, it was perjured testimony.  

Northwestern Law School has a Center for Wrongful Convictions. In 2005, it started looking into TJ's case. In 2007 they gave the information they put together to the State's Attorney's office. 2 witnesses recanted their testimony. One of them claimed the police threatened and coerced him into implicating TJ.

Armed with this new evidence and recanted testimony, a petition for post-conviction relief was filed with the judge who presided over TJ's second trial. It was dismissed as being "frivolous", and was given no hearing.

To its credit, the State's Attorney's office continued to investigate, despite the judge's ruling on the petition. And in May 2009, the SA's office joined a motion with defense counsel to vacate the conviction. A judge granted the motion. The prison doors opened. TJ walked out. 16 years older. Free at last.

Together with some private Chicago attorneys and, I am sure, hundreds of hours of help by law students, authorities were somehow convinced they had prosecuted the wrong man...errr I mean boy.

Here is a nice brief summary of the case. Watch the video about "TJ's" exoneration. It's compelling stuff.

Imagine being sent to prison at 13 and then being released when you're 29. Those 16 years are gone. Think about all the fun and crazy stuff you did during those same 16 years in your life. Who would you be if you were TJ? Would you even be able to function in free society?

TJ spent 16 years in prison and now the authorities have finally charged the likely real killer. And guess what? It's the same person the police were told did it back in 1993. For 16 years that person thought he had gotten away with murder, literally. But for the effort of lawyers, not cops, he would have. I am proud to be a member of the same bar.

This is the kind of stuff I am butting my head up against. Once the police think they have the right guy, it's done. The detectives cherry-pick and bend facts around their theory of the case. However, the theory has to develop around the facts, not the other way around.

You can read written witness statements and tell the story was fed by the police. How do I know? The language in the statements is a dead giveaway. It's all canned police talk. The words in the statement are not the words of the witness. Normal people don't say or write "subsequent to the incident, I observed the offender flee eastbound on 1st Street." That's cop talk. The only people that talk like cops, are cops.

The above quoted sentence is a detective making a statement that the witness will sign as his own. I am often offended that they think they're so smart and that no one will really work up the file. Again, they are playing the odds. They know most can't afford private counsel and the PD's office is too overworked to mine through every case.  

Once the police have the case where they want it, anything potentially favorable to the suspect is ignored. 

You have to appreciate how public perception works. When a horrible crime makes the news the public sometimes goes into shock. And as soon as an arrest is made, there is relief. The story stops being covered by the media and is quickly forgotten. But no one ever asks if the right person was arrested.

I have yet to see one article with a title such as: Man arrested for July 2001 murder of Englewood gang member found not guilty. Why?

No one cares. Really. They don't.

The list of people being exonerated is growing yearly. And many are freed from death row. We, as defense attorneys, need to prevent the wrongful conviction in the first place.

It's our job to make sure the police and prosecutors do their job. To aid us, we have discovery, cross-examination, and hopefully acute attention to detail coupled with critical thinking.

I don't know if this is true across the country, but here the presumption of innocence is a myth. Once the case is clear/closed for prosecution (meaning there was an indictment or probable cause finding), that suspect is guilty as far the government is concerned. I have yet to see one case the grand jury didn't indict.

I would really like to know if a prosecutor ever tells a detective to re-open the case because they got the wrong person. I doubt that it ever happens. Once the case passes felony review, it's the State's job to prosecute the case. There is no looking back.

Well, unless you force them to look back. And I applaud TJ's lawyers for forcing them to do so. Must have been a Herculean effort.

I hate to have to mention it, but this case is yet one more example of problems with the death penalty. Two trials. Two convictions. A judge that wouldn't grant a hearing though faced with exculpatory evidence. And a later "Oops, we go the wrong guy."

The system fails. In TJ's case the error was eventually corrected, but his case is rare. I have a feeling it got a lot of attention because he was 13 and tried as an adult for murder. That fact made someone want to dig a little deeper. Not too many cases get this kind of treatment. 

I wonder how many innocent people are sitting in prison right now with life sentences or on death row?

Knowing what I know, the thought makes me shudder.



Friday, March 12, 2010

I am Fortunate

Last fall at a seminar downstate, I met some rural solo practitioners. Arguably most of downstate Illinois is rural. It never occurred to me that it has to be almost impossible to earn a living downstate doing nothing but criminal work. There's simply not enough cases.

One attorney in particular was from a very rural area. There is one courthouse. Two judges. And the felony trial call is held on Wednesday afternoons. A trip down there would find me thinking I had stepped into the twilight zone. And if he came up here to practice law, he might think the same thing.

As I learned most of the rural guys handle about anything that comes through the door. Wills, trusts, divorce, real estate, and small commercial were the common areas of practice I was told about. And, of course, the rare criminal case. They are mostly DUI's.

Most criminal attorneys I know handle more types of cases than I do. In fact, I am the only criminal lawyer I know that doesn't do traffic cases or at least DUI's. Traffic doesn't interest me and my grandmother was killed by a drunk driver.

I am also the only one I know that will not take criminal sexual assault (rape) cases. I don't think any lawyer likes sex cases, especially if the victim is a minor. Sadly, they often are. I was once in in the special homicide/CSA preliminary court call. I saw a fellow solo criminal lawyer I am friendly with. I was there on a homicide. He was there on a CSA.

He briefly described the allegations against his client. It was a bad case (hard to defend) and made me nauseous. I asked him how he can do such cases. His response was that if that type of call comes in and he needs money, he takes the case. I don't know if he was joking. And I didn't ask.

I have had a couple of really slow months where I stared at my phone waiting for it to ring. I even called my phone from a different line to make sure it was working. It was. No one was calling.

Illinois does not recognize legal specialties. You cannot advertise that you're a specialist in an area. However, it's within the rules to list types of cases you handle.

The list of criminal cases I don't accept is much longer than the list of cases I do accept. Just go to my website. What's listed on the left is about it. Fortunately, the majority of Chicago felony cases fall somewhere in that short list.

I doubt much is going to change anytime soon. I am fortunate to be doing exactly what I want to do, where I want to do it. I never imagined I would be here right now. Not even in law school.

At times I feel like I am supposed to be doing this work. It's almost as if there was some divine plan all along. Feeling as if you're being guided by an unknown power is a creepy thing. But I am not a religious person, so I am not going to claim this was God's plan.

But I am spiritual enough to appreciate a harmonious and tranquil existence. The stresses and worries I have today are light years beyond anything I experienced working at a firm and commuting from the clean, quiet suburbs. I never lost sleep over work before. I never even thought about work once I left the office.

You may ask how in the world my life is more harmonious and tranquil now compared to a couple of years ago. That's a great question.

The answer is: I don't know. Maybe I am not supposed to know. On paper it doesn't make sense. I was a suburban commuter working 9-5. I rode the train everyday while reading the paper and drinking coffee. I had good benefits, paid vacation, a secretary, sick days, a retirement account, a downtown office, and a predictable paycheck.

But I walked away from that not knowing from where the next dollar was coming. I gave up 40 hour work weeks for 60 hour work weeks. I gave up weekends off for weekends in the county jail. I gave up free medical insurance for coverage I am still searching for. Two weeks vacation turned into no days off in 2009. And I can no longer call in sick if I have a tummy ache.

Why did I do this? Simple, I was bored and uninspired. Becoming easily bored is one of my greatest foibles. This flaw extends into most areas of my life, including personal relationships which has caused years of problems. I find most people incredibly boring and quickly grow tired of listening to them speak.

About half way through 2009, I realized I had changed. I had grown enormously as an attorney and felt good that, on a daily basis, I helped people.  I began to feel that I was finally being the Marcus I really am, and not someone I thought I was supposed to be.

I traded in a suburban-ish Honda Accord sedan for a Mustang GT that growls when it idles. It seems more me. I know this may seem a bit silly, but I found this move to be of profound significance. I loved that Accord. It was a great car. I had no good reason to get rid of it. I just didn't feel right driving it any longer. I needed something a little grittier. And I found it. 

Right now I have enough work doing just the street crime cases to earn a modest living. I like the work. It's interesting, but often sad. I have the luxury of excluding cases I don't want. I have accepted I will never get wealthy doing this work here in Chicago. It's impossible. The people that need my help have little money.

Somehow it has worked out so far. I don't have two days in a month that are identical. And I can't get enough of the stories I hear from my clients or witness in person while in court. Sometimes I even think I am close to being cool.

It quickly passes.



Wednesday, March 10, 2010

Did This Really Happen?

This morning I witnessed something that I liken to seeing a Unicorn or perhaps a Leprechaun handing me a pot of gold. I shook my head and eyes, twice. I thought I was dreaming.

I was in court this morning for a preliminary hearing on a minor drug case. While the arresting officer prepared to testify in my case, I waited. While waiting I watched a couple of hearings. It was the usual. Traffic stop, crack cocaine....finding of probable cause.

Then I watched a hearing that involved the cops following someone on the Red Line. For you non-Chicago types, the Red Line is one of the El train routes. It's the longest in the city, running from as far south as 95th to as far north as Howard.

The police had information some 6 ft white guy that weighed 165-180 lbs was carrying some marijuana in a backpack. The defendant in court today was about 6'1" and maybe 170. Two police officers followed this defendant around for 5 hours. He ended up on the Red Line and the two officers were in the same train car.

At some point, they handcuffed the suspect and searched his bag. All of this occurred on the train. In the bag was about 85 grams of weed (felony amount is anything over 30 grams).

The testifying officer said the other undercover officer claimed he could smell the pot while sitting behind the suspect. Ah yes, the smell of cannabis, probable cause to search story.

The defense attorney asked the standard preliminary hearing cross-examination questions. His questions elicited most of the facts I have written. He also brought out the facts that the cops never saw him sell or buy any weed or touch the plastic bag it was in. Pretty standard stuff.

His last question: "You handcuffed him, and then searched his bag?" Answer: "Yes."

The judge this was before finds probable cause on damn near every case, except minor drug possession cases, which this case was not. But he does allow the most defense questions of all 6 of the Chicago preliminary hearing judges.

Questioning is restricted in these hearings. If you start asking any questions that appear to be touching 4th Amendment issues, the State objects "Objection. No motion pending." And the judge sustains the objection. It's frustrating. But you get used to it.

At preliminary hearings the burden on the State to win is very, very low. The judges always err on the side of the cops. And the preliminary hearing is not the forum to litigate whether or not it was a good arrest or lawful search. Or so I thought.

The judge took off his glasses and said something about the Fruit of the Poisonous Tree. I about fainted. A preliminary hearing judge even mentioning the 4th Amendment? No way, Jose. But the judge went beyond mentioning it. He applied it.

This Fruity doctrine was applied to the 4th Amendment by the U.S. Supreme Court sometime during the Warren years. I should know the case, but don't and am too busy to look it up right now. If I had to guess I would say Wong Sun v. United States, but I don't know for sure.

The doctrine is very simple. Any contraband (Fruit) found by police after an unlawful arrest (Poisonous Tree) is inadmissible. It's more complicated in practice, but the doctrine is easy to understand.

The judge said the cops handcuffed the defendant on a weak suspicion and he threw the case out. Two other defense attorneys and myself had to bend over and reach down to grab our jaws off the floor.

Now I have to order the transcript of that hearing. That attorney must have slipped in some question that eludes the rest of us. Some magic word that triggers a 4th Amendment analysis at a preliminary hearing. 

Or perhaps the Chief Judge told the hearing judges to start weeding out more nickel & dime drug cases because the system is at max capacity traveling at ludicrous speed.

I bet the latter. Still getting the transcript though.



Tuesday, March 9, 2010

Need To Vent

Disclaimer: what follows below is me whining and complaining. Some of the content is a repeat of prior posts, but written a different way. 

Heading into 2010 I had several cases moving towards jury trial. I was ready on at least three of them last fall, but the State moved like pond water turning over discovery. I had the meat and potatoes of the case and could have gone, but I kept getting put off.

[When I use the word "go" or any form of the word like "going" or "gone", it means "proceed". If I say the trial is going it means the trial will actually begin as scheduled]

Finally in January, I started setting cases for trial. Wait, I did get one set in December with a January trial date. And it did go. The State had only one witness (police officer) and a good case. I was not surprised when they answered ready. I lost that trial.

But I had 6 other cases to schedule in January. 2 Murders. 2  Attempt murder. The other 2 are minor robberies. I scheduled the first 4 as follows:

Trial Alpha was set for February 23.

Trial Bravo was set for March 8. [It was originally set for Feb 2, but the judge had a seminar]

Trial Charlie was set for March 15.

Trial Delta was set for March 23.

Everyone of these cases has great facts. Everyone of these cases can be won. And I am sure all of the defendant's are innocent. Yeah, I said it. And, yes, I believe it.

March was looking like one hell of a month. 3 juries in one month. All serious cases. Some trial lawyers are lucky if they do 3 juries in a year. I have found I like trial work and don't plan on shying away if I have a good case. Let's go. Let's put it on. 

I showed up to court on February 23 after spending four entire days doing final prep work for Alpha. I have known the facts of that case for months, but I had to draft my opening, fact check to prepare cross of up to 10 witnesses, research case law for motions in limine, and put together my trial notebook.

Being still pretty new at this, I am completely anal retentive about preparing for trial. I don't think you can ever be too prepared. Having a mastery of the facts will never hurt.

And I continue to claim no prosecutor(s) will ever be better prepared than myself. I won't let it happen. They might take one weekend to prepare a case for trial that I have been preparing since the arraignment. I have been developing and shaping my theory of the case all through discovery as more facts are revealed.

The great thing about being the defense, is that the State doesn't know how I am going to try the case. They don't know my theory. The State's theory is obvious. Just read the detective's clear/closed report. If they deviate from the script at trial, it causes problems for them. But you have to know the file to catch the deviations, thus the prep work.

Anyway, on February 23 I was ready. My client was wearing dress clothes while sitting in the holding cell (known as the bull pen). I walked into court at 10:00, but the prosecutors trying the case were not around. The 3rd chair (most junior) ASA was running the court call.

Finally at close to noon, one of the prosecutors finally came down from her office and said they were not going to be able to answer ready. Witness problems.

Though not completely surprised, it was a let down. I demanded trial. The State set Alpha for trial on April 12.

I came home, unloaded by trial bag and put the trial notebook on the shelf. Next up was Bravo, on March 8.

I have had Bravo since last summer. I started reviewing that file again for the millionth time. I edited an opening I drafted months ago. At this point, I still had one full week before trial, so I wasn't in crunch time yet. But I was actively preparing the case and started to put together the trial notebook.

This case had a status date of February 26. This was supposed to be the last date prior to trial. Motions in limine were ordered to be prepared and ready to argue. I spent most of an afternoon preparing mine. However, when I got to court I was told the State won't be ready. I demanded trial. The State set Bravo for April 19. Hmph.

Charlie, set for March 15, was next. Since Friday, February 26 I had been reviewing this file and getting it ready. Since the trial that was scheduled immediately before it (and the one before that) won't go, it just gave me more time to prepare. And more time to worry and be stressed out.

I called witnesses. I went to the crime scene again. I took more pictures. I took more measurements. I reviewed all of the witness statements again and refreshed my factual knowledge of the file.

Yesterday Charlie was set for status. Again, it was supposed to be the last date prior to trial. We do these final status dates to sort out any last minute pre-trial matters and sometimes present and argue motions in limine.

Motions in limine are requests for the judge to make pre-trial evidentiary rulings. Their purpose is to avoid delays during the trial, like long sidebars or bickering in chambers.

How surprised was I when I was told this case won't be ready as scheduled either? Gee. Really? But now I am stuck and can't demand trial because mid-April is already reserved for Alpha and Bravo.

I talked with the prosecutor and she told me if I demanded she would set it for April 12 (Alpha's new trial date). Damn. Is this a conspiracy?

Charlie might go May 2. Might. Or the State can keep not being ready until I ultimately demand on Charlie too.

Delta also had a final status date yesterday. My investigator is attempting to interview witnesses. And I already know this case factually, inside out. I was looking forward, however, to having almost 3 whole weeks to casually finalize this one.

But, this one isn't going as scheduled either. Double damn. What's the excuse on this one? A gun shot residue test on some clothing won't be done until the end of March. This case is from last August and you still have stuff at the crime lab? Seriously?

Again, I can't demand trial so we set Delta by agreement for April 27 but with an interim final status date in early April. My client wasn't happy. You wouldn't be either. But I told him we know the results of this test will be negative (because he's innocent), which will be more ammunition for us at trial.

This is so frustrating. These trial cases are not my only files. I have over 20 additional active felony files that I can't ignore. All of these cases require work and court appearances. But typically I schedule them around trials. And I often have to turn down new work because the date I am needed conflicts with a trial date.

What really jerks my chain is that I wasn't able to go to a NACDL seminar in Austin on February 25, 26, and 27 because I was supposed to be in trial on Alpha, thus I didn't register or make travel plans.

I haven't been back to Austin since I left in 2002. I was looking forward to eating at The Salt Lick again, which is about as good as it gets for a carnivore. I wanted to drink cold Shiner beer from a bottle and eat the best BBQ on the planet.

I still haven't eaten good brisket in almost 8 years.



Monday, March 8, 2010

31 Years...Worth It?

I don't get shooting a rival gang member just because he's in another gang. That mentality is one that I cannot grasp. I understand shootings that involve money (drug business) or revenge. I can even understand wanting to shoot someone you don't like. Or even cab drivers. They make me angry regularly.

But a stranger? Someone you have never seen before? Someone that's just standing on the wrong corner? Walk in to another gang's turf, pull out a pistol, and just shoot whoever you see. I don't get this.

Proving you're hard on the streets must require acts like this; stupid acts that are not thought through and have dire consequences. One shot from that gun and your free adulthood is gone.

Attempted first degree murder is punished as a Class X felony, or 6-30 years in prison. Keeping in spirit with the strict Illinois firearms laws, extra years get added to the base sentence when guns are used.

If the offender was in possession of a gun during the offense, it's another 15 years. In this scenario it's obvious there was a handgun. Discharge of the firearm gets another 20 years. Discharge the weapon and hit someone with a bullet, and it's an extra 25 years.

It's not up to another 25 years. The judge can't choose a random number between 1 and 25.  It's 25 years...all of them. 

The 15, 20, and 25 year sentence enhancements are added to crimes other than attempt murder, such as armed robbery and aggravated vehicular hijacking.

In this example, assuming a conviction and the State establishes great bodily harm (just getting shot pretty much proves this), the minimum sentence would be 31 years. And since great bodily harm was caused, this is an 85% sentence (meaning real time would be 85% of 31 years), or just over 26 years.

A teenage offender wouldn't get out of prison until his early 40's. Is it worth it? Is proving you're hard worth 26 years of hard time?

In Illinois, the minimum prison sentence for murder is 20 years. So it's possible to do a lot more time for shooting someone in the knee than actually killing them. But the weapon sentencing enhancements apply to murder cases as well. So murder with a handgun carries a minimum of 45 years.

I don't understand why anyone would risk spending most of their adulthood in prison to shoot someone that just happens to be in another gang. I don't get it. From where does the motivation come? Is it hatred? Desperation? Fear? Frustration? Ignorance?

But sadly, I think I know the truth and it's ugly. Respect. Being a hard-ass on the street does earn respect, but from the wrong people. And in the wrong way. I argue that being respected out of fear is inferior to being respected for having integrity.

The comedian Chris Rock said, and correctly so, that a man just paroled gets more respect on the street than a new college graduate.



Saturday, March 6, 2010

Criminal Attorneys...Remember

When I was sworn in as a proud member of the Illinois bar, I had to raise my right hand and take an oath. I think the only other time I had to do this was when I enlisted in the military.

I am pretty sure in both instances I swore to uphold the constitution. But the attorney's oath mentioned something about clients. It's hard to be an attorney with no clients, unless you're in-house counsel or work for the government. But for street guys like me, without my clients, I fail to exist. Without my clients, I have no purpose. Without my clients, I am nothing.

Some in my jurisdiction seem to have forgotten the client's interests come before the attorney's. And this really bothers me. I know I am still relatively new and that in another ten years I might be a grumpy-Gus, but for right now I still care about my clients and treat them with respect.

Criminal attorneys are much like trauma surgeons. We are only called when something has gone horribly wrong. Trauma surgeons are highly skilled professionals. Criminal lawyers are supposed to be highly skilled professionals. [I mean no disrespect to other types of doctors and lawyers, everyone plays a part].

People are calling us for help. They should not be talked down to or rudely dismissed because they cannot afford you.

If you are an attorney that promises an outcome before any court appearance, and then blame the judge when you don't deliver, you should be disbarred. Wait, if you're an attorney that promises anything beyond doing your job, you're giving the rest of us a bad name.

If you oversell the merits of your client's case just to be paid trial fees for a case you cannot win, disbarment and 30 days in county. This is also fraudulent as far as I am concerned.

Have you ever sold a guilty plea to your client by making their case seem worse than it is? The prosecutors in my city urge us to do it. I refuse. No way. That's bad business.

And if you are paid trial fees and chose to do a quick bench trial because you're too lazy to prepare for a jury, disbarment and 90 days in county.

Our clients and their families do not understand the business like we do. They will believe almost anything we tell them. If we advise them to plead guilty they will plead guilty. If we tell them a bench trial is the best way to go, they will trust us. That's right, our clients trust us.

This trust is largely based on who we are. Their lawyer. We are supposed to be their representative in a forum where the other party is trying to convict them and possibly incarcerate them. We are all they have in a desperate situation. They need us. Badly.

Sometime try seeing all of this from the client's eyes. What if you were arrested and charged with murder but were innocent. How still would you be able to sit while the system slowly moved your case?

What if you couldn't make bail, how much would you worry? How much would you wonder if your attorney was really on the outside working for you? Could you make it a year or more in the county jail waiting to have your day in court? Could you place the keys to your jail cell in the hands of one person, your lawyer?

If you are in the criminal defense business, your client has something to lose no matter how trivial the case may seem. Whether it's having their driver's license suspended or going to prison for life, most cannot afford to lose. Or if they must lose, it's your job to make that loss as painless as possible. 

Our clients trust us because we are lawyers. Despite all of the lawyer jokes and tasteless television commercials, practicing law is still a very noble profession. Your license to practice is a privilege, not a right.

Think of all of the U.S. Presidents and members of Congress that were and are lawyers. I think being in the same crowd as Thomas Jefferson and Abraham Lincoln is something to be very proud of.

Much of the public looks up to us and holds us in high esteem. Thus, the client's trust in us is almost an automatic simply because we hold a license. Do something to deserve it beyond paying you annual bar dues. Don't think for one minute that lasting trust isn't earned by doing more than filling a suit.

All we have is our reputation on the street and our credibility in the courtroom.



Thursday, March 4, 2010

What Are "Arms"?

The 2nd Amendment gives people the right to bear arms. In case you have been sleeping, there is a case before the U.S. Supreme Court with huge 2nd Amendment implications.

There is an ordinance in the city of Chicago that bans handguns. Someone sued the city. The case finally made it's way all the way to the top and was just argued before the Supremes a couple of days ago.

At this point though, the case isn't really about what the 2nd Amendment means or whether or not handguns are considered "arms". The issue is whether or not the Federal 2nd Amendment is applicable to or held against the states. Why?

A few years ago there was a handgun ban law passed in Washington D.C. Someone sued. That case eventually made it up to the Supreme Court and the ban was struck down as being in violation of the 2nd Amendment. Therefore, clearly the Supreme Court feels the Federal 2nd Amendment prohibits the banning of handguns.

Since Washington D.C. isn't a state, Federal law applies across the board. There is no state constitution, thus by default, the Federal 2nd Amendment applies to D.C. 

Now you can see what's at play. If the Federal 2nd Amendment applies to the State of Illinois, and the city of Chicago, the handgun ban goes bye-bye. It would be unconstitutional.

But what does the word "arms" mean? What is an arm for 2nd Amendment purposes? The generic definition of the word means weapons. At the time the original 2nd Amendment was written there wasn't as many types of firearms and other weapons that there is today. That's obvious.

I think it's safe to assume that the original use of the word "arms", covered about anything in existence. At some point, however, the meaning and/or interpretation of the word changed.

Certain types of firearms are banned lawfully in all states. I assume it's illegal to own a .50 caliber machine gun in all 50 states. I am sure owning hand grenades is illegal. Anti-tank mines too. Shoulder-launched, anti-aircraft missiles are a no no.

So basically all military-grade stuff is illegal to own. It would be hard to insure and register a tank in Chicago, and parking would be a nightmare.

A law school friend once told me he thought the 2nd Amendment was put into the bill of rights so that if the people ever wanted to overthrow the government, they could have the guns to do it. After all, isn't that basically how we became a nation? That's a very interesting thought.

But since the government has all of the good stuff, the chances of the Michigan Militia invading Washington D.C. and taking over are pretty slim. Perhaps that's why I can't own an F-16. Not that I could afford the fuel for it, but you get my point.

But where and how have state governments drawn the line to determine what "arms" means? How do you do it?

Gun lovers typically argue their need for guns is for protection and hunting. I am sure hunting was a major reason for the creation of the 2nd Amendment in the first place. Because in the late 1700's many people still had to kill animals to survive. Today, not so much.

So for most of today's hunters, killing is for sport. Yeah, some do eat what they kill, but don't need to in order to keep from starving. Hunting is called a sport, but so is bowling. And curling. I run for sport. Some sit in trees and shoot at deer. Different strokes for different folks.

I am not anti-hunting. Chicken fried elk steaks are very good. But I choose not to hunt. I was not raised around hunting. My dad was not an outdoors man. Hunting and fishing seem to be sports that are passed on from father to son, although I am sure not universally true.

Ok, so we need guns to hunt. What kind of guns? Well, in Illinois one cannot hunt with a rifle at anytime. Most Illinois deer hunters use bows. You can hunt with shot-guns in Illinois but most people can't get close enough to a deer to kill it with one, thus the bows. Shot-guns are mostly used to shoot at ducks, pheasants, and quails.

I doubt anyone hunts with handguns. Semi-automatic assault weapons also are not likely used for hunting.

Now for protection purposes, arguably anything under the sun could be used. Again, no military grade weaponry. I am willing to bet the weapon most purchased and kept for protection in America is the handgun. It's easy to understand why.

Handguns are small. They can be stored in very accessible locations. And you can teach your wife how to use it. If a burglar is heard breaking into your home at 2:00 am, having to go to the hallway closet to grab grandpa's old 12 gauge, find the shells, and load it would be a pain in the butt. However, grabbing a 9mm from the bedside table and loading a clip is easy as pie.

I believe in the right to protect one's home with a weapon. And handguns just make too much sense to outlaw them. But from a legal perspective, and in terms of the 2nd Amendment, I don't see a problem. Or maybe I do see a problem but fail to understand the analysis.

What is it that makes one weapon illegal and another one legal? If the original definition of "arms" included everything around at the time, what caused legislators to narrow the definition?

The military weapons are pretty obvious. Such weapons are not designed for storage in a home. I get that. And it makes sense. But some military weapons can be purchased legally. And here is where it gets confusing.

My cousin owns, and proudly displays in his bedroom, an M-4 assault rifle. It's basically a modernized M-16, with bi-pod legs that can be extended for use. It fires a 5.56 mm round or .223. It can engage targets easily at 300 meters (900 ft). When I write engage, I mean it's not hard to get a head shot at 300 meters with this weapon. And it could go through a 30 round magazine in a few seconds.

My cousin lives in Illinois. Thus, even if he wanted to, he cannot use that weapon to hunt within the state. And does anyone really hunt anywhere with an M-4? How many times do you need to shoot the deer to kill it? I was trained for one shot, one kill. But I digress.

So, what is the point of even owning such a weapon? Is he worried Iowa is going to invade Illinois? Or maybe it's those pesky Hoosiers?

While apparently owning this assault rifle is ok, a shotgun with a barrel shorter than 12 inches isn't ok. So much for making grandpa's old shot gun easier to get to in a hurry by shortening it a bit.

I am just really confused. Ban this one, but not that one. Hunt with this one, but not that one. Where does it end?

Time has shown that the word "arms" means a lot of things and is not consistent across the country. If the Supreme Court rules the Federal 2nd Amendment applies to the states, there could be some huge problems with current state gun laws.

It's a fact that the large majority of homicides caused by firearms are committed with handguns. Therefore, I understand why Chicago banned them. It must have seen like the thing to do.

Chicago has always had a homicide problem. Now, if most of those homicides are caused by handguns, then banning handguns should lower the homicide rate. Right? But banning handguns does not equal removing handguns from the street, thus the logic fails and so has the ordinance.

Chicago's homicide rate has decreased over the last several years, that's a fact. And there's no shortage of people wanting to claim credit. In 2001, there were 665 homicides in Chicago, but only 448 in 2004. That's a serious reduction. But has nothing to do with the handgun ban. There are pistols everywhere. Literally. I will tell a story to illustrate my point.

My investigator is a retired Chicago police homicide detective. One time he was investigating a case and had reason to believe a weapon had been thrown down either a sewer or storm drain (I can't remember). He had some type of giant magnet brought out and lowered under the street in an attempt to find the gun. Pretty clever.

When the magnet was brought up, there were 6 pistols stuck to it, but not the one he was looking for. Damn.

The Chicago handgun ban took effect in 1982. And 28 years later, it's still useless and has done nothing to reduce handguns on the street. So while Mayor Daley's interpretation of the word "arms" does not include handguns, common sense and, according to the Supreme Court, the Federal constitution say otherwise.



Client vs. Attorney

I saw something in court yesterday that made me stop and think. I will preface what I am about to write by admitting I know nothing about the case or the client.

There was a defendant in court being charged with a crime for which the State is seeking the death penalty. Again, I know nothing more than that. But it's safe to assume he's been charged with some heinous murder. The defendant is represented by two public defenders. Both were there but only one talked.

If you recall I previously wrote that indigent capital murder defendants are assigned two public defenders who are members of the State's capital trial bar. Also, money is allotted for the hiring of expert witnesses.

I took note that the defendant was being kept from standing next to his attorneys in front of the bench. He was being held over to the side and had a sheriff on either side of him. This was odd.

He was also in IDOC custody as opposed to Cook County Department of Corrections custody. In other words, he's currently living in prison and not the county jail. IDOC guys wear yellow jump-suits and are brought into court in handcuffs and leg irons. Jail inmates wear Khaki shirts and pants and are rarely restrained when brought into court.

The defendant wanted his attorney to attempt to negotiate a plea of guilty in return for a life sentence (this is my guess). But his attorney was asking for more time and money to hire their own doctor to evaluate the defendant's mental state. This was upsetting the defendant but he wasn't causing a ruckus.

His attorney said he had an ethical and professional duty to have his client examined by their own doctor. But that despite his legal advice, his client wished him to enter into plea negotiations with the State. The attorney was looking for help from the judge. And he got it.

Mental health issues are problematic. Many defense attorneys, especially in death penalty cases, attempt to make mental health an issue from day 1. This can be done for a number of reasons. Obviously if insanity is going to be used as a defense, a doctor must opine the defendant was legally insane at the time of the crime. Pretty simple.

But sometimes raising a mental health as an issue can be done to delay and postpone trial. A lot of attorneys I know like to delay all litigation as long as humanly possible. Personally, I don't do this. I move cases. I don't like waiting to see if witnesses die or memories fade. I hate going to court and continuing cases when I have no reason to. I have better things to do and too many courthouses to cover.

This defendant was chomping at the bit to address the judge. For some reason it's always people being represented by a PD that want to talk to the judge. In this case, it was pretty obvious the attorney wasn't telling the judge what the client wanted him to.

Judges know there is often a lot of friction between PD's and their clients. Though rarely accurate, many PD represented defendants feel their attorney isn't really on their side. PD's are thought to be working with the prosecutors. I know this not to be true, but I also know that due to case load, PD's are usually slow when it comes to litigating cases.

As a defendant this has to be frustrating. They are brought to court maybe once a month and for 2-3 minutes are brought before the judge where they really have no say in what goes on. And since this defendant is in IDOC custody, it is doubtful his attorney ever visits him. Therefore, some defendants feel cheated and left out of the process.

Like all judges do, this one told the defendant before he spoke that anything he said could be used against him. He was advised not to talk, but the judge said he would listen.

The defendant said he was already cleared by the State's doctors. The State's doctors said he was neither insane or mentally ill. And any doctor hired by the defense, on the State's dime, would be a waste of time and money. He wasn't going to talk to any more doctors. He wanted to plead guilty, right now.

This created a problem for the judge, which he explained. The judge said he would not feel comfortable taking a guilty plea unless he was sure the defendant was fit to give it. The judge was covering his butt. He doesn't want this case bouncing back to him from the appellate court. No judge does.

Now back to the PD and his ethical and professional duty. If the PD reasonably believes there might be a mental health issue, then he absolutely has the duty to hire a doctor to examine his client. But, if this has been a delay ploy, doesn't he have the duty to let his client plead guilty? Well, no. Actually the client has the right to plead guilty. Sort of.

The judge explained to the defendant a few decisions about his case that were his and his alone to make. He was told he had the right to choose how to plead, to have a bench or jury trial, and whether or not to testify. Everything else, he explained, were strategic decisions left up to the lawyer.

Getting off on a tangent: I love hearing the word "strategic" in court. It reminds me that in many ways, litigating is like playing chess. Or being in war. That's how I see it. Remember, I advised all of you to read your Sun Tzu. The Book of Five Rings by Miyamoto Musashi is another good read, but more esoteric than The Art of War.

Returning now to my story...

I guess this defendant's right to choose how to plead has been temporarily suspended. There must be something in the record that, despite the State's doctor's opinion, made the judge not want to accept a guilty plea. And this created more friction between the attorney and the client. I perceived the client felt his attorney was not working for him and was just delaying things for some reason.

I was once told by someone that we defense attorneys often have to save our clients from themselves. How true. But sometimes the client can save us. If you let them.



Tuesday, March 2, 2010

More Guns?

Last week I was sitting in chambers with a judge and the prosecutor. "Chambers" is a fancy court word for office. I have a pending murder case in this courtroom and we were all discussing the trial schedule.

At one point the prosecutor made a comment about how trivial this case is. In his opinion, it arose out of a dice game gone bad. That's not really what happened but for purposes of this post, I will go with it.

I commented that there are too many guns on our streets. He responded "or not enough!"

Do we need more guns? Should citizens be allowed to arm? There is argument to support this assertion.

In 2008, there were 170 murders in Dallas and 294 in Houston. That's a rate of 13.3 per 100,000 citizens in Dallas and 13.1 in Houston.

Texas has the most liberal gun laws in the nation. In Texas, one can take a class and legally carry a concealed weapon. You can also lawfully carry a gun in your car to fight off would-be car-hijackers. My college girlfriend's mother often carried a small pistol in her purse, though I doubt legally.

Now compare Dallas and Houston with Chicago. Dallas has a population of about one million and Houston has about two million. So, together they are slightly more populated than Chicago and I am not even counting Fort Worth.

In 2008 there were 510 murders in Chicago, or 18 per 100,000 citizens. Dallas and Houston combined had 464. That's 46 less. The latest trend in Chicago is that about 80% of all homicides are by firearm. I assume Dallas and Houston are probably similar. But the difference in homicide numbers doesn't jump at me with a conclusive spring.

Even robberies are comparable. In 2008, Dallas and Houston combined had 17,069 and Chicago had 16,649. Argument has been made that if citizens are allowed to carry guns, would-be robbers might think twice. Not sure the numbers support that argument.

Dallas and Houston have lots of guns, many legal. Chicago has lots of guns, mostly illegal. Is there really a difference in the rates of murder? Robberies? In 2008 there wasn't. In the number of shootings? I don't know.

Are the firearm homicides in Houston and Dallas being committed with legal or illegal guns? I am betting the later. Pretty much all Chicago firearm homicides are caused by illegal firearms.

Whenever there are shootings or robberies in Chicago (daily) people write on the internet that citizens should be allowed to arm themselves. I have seen argument that if the criminals are going to carry guns anyway, law abiding citizens should be allowed to as well. Legally.

I can tell you from experience that a lot of people in the high crime areas of Chicago are armed. I know of older women with pistols in their homes. They keep them for protection even though handguns are illegal in Chicago. A number of people also carry guns in their cars. Again, for protection.

As I pointed out to the judge, those in Chicago that could potentially carry a concealed weapon, are not likely living in the most violent areas. He agreed. If Illinois created concealed carry permits, I doubt that many more guns would be on the streets of the bad areas.

Why? In Illinois a convicted felon cannot possess any type of weapon, including ammunition. I have seen numerous people go back to prison because a shot-gun shell was found during a search warrant. No joke.

A convicted felon cannot even live in the same house where another person lawfully owns a weapon. Quite honestly convicted felons would inhibit the licensing of concealed weapons to those with lack of criminal backgrounds simply because a felon lives in the same house.

Instead people up around where I live would be packing and that's scary. I live really close to Wrigley Field and see many, many pissed off, drunk Cub's fans. Not sure I want those people armed.

My point is that most of the people in Chicago screaming about being able to carry guns don't live in neighborhoods where carrying a gun is really needed. This is entirely my opinion though.

I also believe that citizens who live in dangerous neighborhoods don't post on the internet about gun laws. They go buy a gun, if they don't already have one. 

I do not think more guns are the answer. If the homicide and robbery rates in Houston and Dallas together were significantly less than Chicago, I might be persuaded. But they are not. Perhaps those that carry concealed weapons in Texas feel safer. I know sometimes I would feel safer driving in some neighborhoods if I had a 9mm under my seat or in the console.

But I don't want to have to defend myself with a handgun because I am wearing a Cardinals hat.



Monday, March 1, 2010

Chicago Gangs

Chicago has been a violent city for a long, long time. After all, Chicago is where Al Capone reined supreme during prohibition. During the roaring 20's, Chicago was gangster central.

In 1929, Chicago was the home of The St. Valentine's Day massacre. The waring gangs of old used to gun each other down with Thompson machine guns with great regularity. For decades, the Chicago river has had a steady flow of blood trickling in from the streets.

In the 1960's, isolated neighborhoods in the city's south and west side gave birth to the modern Chicago street gangs. But I don't think it would be correct to say all gangs were originally formed for the express purpose of criminal activity.

Some of the original Chicago gangs could be likened to community organizations with political goals, but with militant overtones. The Oakland based, Black Panther Party, is an example of one such gang.

One of the first Chicago gangs to gain prominence was the Gangster Disciples. Their immediate arch rival was the Vice Lords. While the Gangster Disciples, also known as "GD's" were almost exclusively black, the Vice Lords were comprised of whites, blacks, and Hispanics.

One of the GD's founders helped create the Folk Nation which is an amalgamation of several smaller Chicago street gangs, including several Hispanic gangs such as the Spanish Cobras, Latin Eagles, and Maniac Latin Disciples. On the street, these smaller gangs might be rivals but once either in the county jail or prison they align with other Folk.

The Almighty Vice Lord Nation is similar to the Folk Nation with many smaller gangs allying with the larger Vice Lords gang. The AVLN and Folks are enemies.

The 4 Corner Hustlers are a west side gang under the Vice Lord nation. The Black P Stones are a south side gang, that are rivals to GD's, but are not necessarily part of the AVLN. The Latin Kings is Chicago's largest Hispanic gang. Anyone that's part of the Folk Nation is their enemy.

At some point I have had members of every one of these gangs as clients as well as several other gangs not mentioned. It can be very uncomfortable to have 2 clients at the same time who are in gangs at war with each other.

Last year I had a client that was a member of the Spanish Cobras. Then I took the case of a Y.L.O.D (Young Latin Organization Disciples, pronounced "Y low D's"), who had been a Cobra but switched gangs. I won't even get into the mess that comes with switching gangs. But typically to show loyalty to your new gang, you must kill a member of your old gang.

This gang stuff is no joke. 

If I think about, most of my past and current clients are in a gang. Since most, if not all, gang activity is criminal, it's no wonder so many gang members get arrested. Through the course of my representations, I have learned from them about gang life.

Some were more willing to discuss it than others, but I have to admit I am curious about a lot of it. And since almost all of my cases are considered street crimes, it's important to have an understanding of the Chicago streets.

Out of caution, I never tell clients about other clients I am representing. Some know of former clients, if they were referred to me by them. But for the most part, I don't discuss anything but the client's case with the client.

Unlike the Bloods and Crips of Los Angeles, who wore either red or blue clothing to signify membership, most Chicago gangs do not fly colors. Certain types of clothing are sometimes associated with certain gangs, but for the most part, it's hard to spot a gang member. So many of the Chicago gangs are neighborhood based, thus gang turfs are laid out across the entire city.

While there are hundreds of smaller gangs in Chicago, most of the larger ones are listed here. Chicagogangs.org is a low-budget website with pretty accurate information.

Even with all of these factions and sub-factions, when they get to the jail and prison they separate into basically 2 groups, the 6's and the 5's. The 6 and 5 stand for points on a star. The Folk Nation tattoos usually contain a 6 sided star and the Vice Lord Nation uses a 5 sided star.

So when they get locked up, all of the Folk Nation align with the 6's and everyone else with the 5's. Non-gang members are called 'neutrons'. When prisoners have to be moved through the jail or prison in groups, such as in a single file line, the 6's go first, the neutrons are in the middle, followed by the 5's.

Street gangs also prefer street justice. They don't trust cops or the courts. And there is an unwritten rule that it's not wise to go to court and testify against a rival gang member, even if you were shot by him.

The reason is that there might be repercussions. The defendant's boys out on the street might just shoot up your house if you testify in court. Street justice is much simpler, but just breeds more and more violence. But it's simple. Eye for an eye.

If you shoot me, me and my people will come shoot you and your people. If you shoot at my house, I will shoot at your house. If you rob me, I will rob you. But in reality it's not quite that simple as the gangs try to one-up each other.

In other words, the reaction is greater than the action that caused it. If you shot at me by yourself, I am bringing me and 3 others to shoot at you and hopefully kill you. Get the point?

To say every gang member is a killer is like saying every person that goes to church is a religious fanatic. They might all be criminals, but so are a lot of people who are not in gangs.

Now before you assume I am defending the gang way of life and attempting to minimize their ill-effect on the community, I am not. I may have gang members as clients but I do not condone what they do. I am not a gang supporter by any stretch. But perhaps I have a better understanding of gang life than most.

And without fail I always tell my young gang clients they need to find a new group of friends or they are in for a life of going in and out of prison, or death at a young age. I think they know what I am saying to be true. But in some circles, penitentiary time is a right of passage. They expect to go to prison. 

More often than not, going to prison or getting shot earns more respect than obtaining an education. And dying young gets your picture on t-shirts along with a well attended funeral. I have been to a gang funeral. People actually took pictures and, in some cases, video of the 17 year old corpse laying peacefully in the coffin. I found that completely bizarre. He looked quite different than he had a month earlier when I met him in the county jail.

Many don't make a conscious decision to join a gang. They just belong to a gang because of where they live.

In a lot of neighborhoods you have to go out of your way to not be associated with a gang. Typically never leaving the house accomplishes this and many do not, but for going to school and back. But the gangs permeate the schools too; however, most drop out when they turn 16. Many of the ones that don't drop out are eventually kicked out.

Very few of my clients have graduated from high school. Those that have a GED, likely got it in prison. Earning a GED in prison knocks 60 days off your sentence.

To say I am only interested in street gangs because of my work would be inaccurate. Perhaps my interest in street gangs is why I choose to do what I do, where I do it. I have never given it much thought. But the inner city has always interested me. I grew up in the inner city, but not Chicago. I saw crime but not shootings.

I can never say my job is boring or even slightly uninteresting. I never judge my clients and I tell them I won't. I am there to help and maybe understand them.

But there has been one issue about gangs that has continued to baffle me. Though loyal to the point of killing on the street, once a gang member is in jail, they are forgotten. No letters. No visits. Nothing. They have protection on the inside but that's it (though nothing to snort at).

I have yet to be hired by a gang member to represent one of his own. It just doesn't happen. I might feel betrayed, especially if gang activity is what got me locked up. I would expect the Calvary to come. Instead, they get me.