Tuesday, April 27, 2010

A Nightmare's End

Shortly after midnight on August 3, 2009, a would-be car hijacker shot a young man once in the back of the head, killing him instantly. The victim's car rolled through the intersection and crashed into a tree in a south Chicago front yard.

There were two passengers in the car. Riding shot-gun was the driver's girlfriend. And seated behind the driver was his best friend. Both passengers quickly exited the car and soon it caught on fire.

Several people called 911 with reports ranging from hearing a gunshot fired to a car crashed into a tree. One of the callers lived only 3 houses from the intersection where this happened. A couple minutes later, she called back to report the car was on fire.

After the fire department and police arrived the caller left her home to go to McDonald's. When she returned around 1:30 am, she found a number of Chicago police officers trying to get into her home. There might be a suspect inside, she was told. To which she replied that only her cousin was inside.

The cops go inside her home. In a bedroom they find a young black male in bed fully clothed. He was asleep. The young man is awakened, opens his eyes, and sees handguns and flashlights. He is quickly taken into custody.

Later that morning he is interrogated by a detective. He claims he has no idea what happened or why he is in custody. The detective attempts to trick him repeatedly, but the man's story remains unchanged: he knows nothing about what happened. He played basketball until 8:30 and crashed. He was asleep.

Eventually the man gets tired of the interrogation and asks for a lawyer. All questions stop.

The two passengers from the car are interviewed. The best friend already identified the man outside of the home in which he was arrested. The physical line-up at the police station is a formality as he easily recognizes the man again.

The following Saturday, the young man's mother called me on the phone. On Sunday I went to the county jail to meet her son. From the moment I shook his hand and looked him in the eyes, I didn't believe he was a murderer.

The following Friday I met his entire family in their south side home. My lack of experience was disclosed. His older sister grilled me hard. She wanted someone more experienced. I understood. The mother liked me. I was affordable. I was hired. 

In late August, the man was indicted. In September I made my first court appearance as his attorney when he was arraigned. I had some prior experience with the prosecutor but not with the judge. I was advised by other attorneys to get the case out of the assigned courtroom. Some don't like this judge.

But I kept it where it was because I liked the assistant state's attorney in charge. Though I had never litigated against him, I trusted him. I can't say why either. There is just something about him that made me feel he would keep it fair. He uses the word "buddy" a lot in speech, i.e. "Hey Marcus, how you doing, buddy?" I like that.

It's always nice when discovery goes exactly your way. The State had no physical evidence. I mean none. No gun. No blood. No gun shot residue. No prints. Nothing. Nada. What they did have was eyewitness testimony and that can be pretty compelling.

In early 2010, I filed 2 pre-trial motions: to quash arrest (based on no probable cause) and to suppress the show-up identification. I didn't expect the judge to sustain either motion since it's a murder case. Judges don't want to throw out murder cases. It's too political.

I intended to use the motion hearing as a quasi discovery deposition. I was able to get 3 police officers testifying under oath about the case. And I found out a lot, while impeaching one with his own arrest report.

The judge denied the motions as expected and we moved towards trial. The State was ordering more tests from the crime lab on clothing and such, but nothing came back that helped them. In fact, every negative test only helped my case.

I found out that the backseat passenger (the one that supposedly ID'd my client) was called to testify at the grand jury. But when he arrived he was no longer sure my client was the bad guy. Detectives tried to pressure him but he wouldn't give in. The lone eyewitness did not testify before the grand jury.

Instead, the State called the girlfriend who was unable to pick my client out of a line-up. Her testimony impeached itself. In about 4 pages of transcript she goes from not being able to identify the defendant in a lineup to being sure he was the shooter.

When I first reviewed the transcript I made notes all over it and stuck at least 20 post-it notes to various pages. I was going to have fun with this at trial.

It never seemed odd to me that the one eyewitness never testified before the grand jury but the occurrence witness did. I didn't catch it. I overlooked it. Then I got the note the ASA at the grand jury wrote about the eyewitness being unsure.

Once I read her hand-written note, the light bulb finally screwed in all the way and it made sense. My instinct told me all along the best friend's story wasn't accurate. It was inconsistent with itself, the police reports, and the evidence. The fact that he balked at the grand jury only confirmed my suspicion. At that point, I felt really good about this case.

What made me angry was that the grand jury business happened later the same month as the murder, August 2009. So less than one month after the shooting, the cops were on notice that the guy they arrested might not be the real killer. And they did nothing.

That's right. As test after test from the crime lab came back with no findings to link my client to any crime, the police did nothing. Why? I have written about this before. The reason is because for CPD purposes, the case was closed. They had their indictment. The case was in the court system. Done deal.

Did they know the defendant was going to hire a private attorney who would actually work the case up? I don't know. My suspicion is they were playing the odds that only an over-worked PD was ever have the case and it would sit for a couple years before being plead on a deal.

That mindset really pisses me off.

I hired an investigator out of my pocket. He tracked down the eyewitness, who agreed to meet him and have his statement recorded. And just as I suspected, the detective on the case pressured him to ID my client.
[Note: I edited out a lot of things this witness said happened. Why? Because the allegations are foul and involve a number of people in various offices in my local criminal justice system.

And more importantly, as far as I am concerned, they are only allegations. I do not have independent confirmation of most of what this young man alleges took place. Therefore, I feel it would be irresponsible for me to write as if everything we were told is correct factually when I have no confirmation this is the case.]
My investigator sent me a CD with the interview on it along with a written report. I made copies of both and gave them to the prosecutor in early April. By then the witness told the State he talked to my investigator, but he didn't tell him everything.

The day I handed over the interview was the final court date prior to trial. I honestly didn't know what the State was going to do. As I handed over my discovery I told the ASA to call me. He didn't.

Early last week I went into the courtroom and was told they would be ready on Tuesday, April 27, 2010. I admit I was a little shocked. I couldn't figure out why they were still going to proceed to trial. They had no case.

But the fact that the trial was still on made me worry a little. I spent a lot of time trying to think of any unseen landmines that may lie in waiting. And as much as I tried to invent a case for the State, I was unable to.

Last Thursday I got a message from the ASA about stipulating to a witnesses' testimony. At the time I was in a murder trial and didn't call him back until Monday morning. As I was putting together my trial notebook Monday afternoon, I realized I didn't have a copy of the results of a test performed at the crime lab.

I called. I left a message. A couple of hours later the prosecutor called back. I was sitting on my couch. The file was completely covering my coffee table. There was a legal pad on my lap. I was writing my opening statement. It was almost done.

"I don't want you to waste any more time tonight on this case buddy. I am going to nolle it tomorrow." The only words that came to my mind were "thank you." And that's what I said.

For non-lawyers, nolle is short for nolle prosequi, which in Latin means: unwilling to prosecute. Nolle is pronounced "nah-lee". In my jurisdiction, this is how the government dismisses or abandons a case. And the words "motion, State nolle pros" are almost as nice as "not guilty" or "motion to suppress sustained". As the defense, it means you won.

I walked into court this morning. The prosecutor looked deflated. It was almost a little sad because I like this man. His normal shine was gone. I said hello.

In the holding cell I found my client dressed in civilian clothes for trial. I told him the news and immediately his hand shot through the bars to grab my hand. He shook it enthusiastically while smiling and saying "thank you so much, Marcus. Thank you. Thank you. Thank you."

The holding cell erupted into celebration. For a moment I felt like the greatest attorney on the planet. That moment was brief and it quickly passed, however.

My client's case was called and it was dismissed. It took less than 10 seconds. The judge wished him good luck. I followed my client back into the holding area. He gave me a big, firm man hug prior to being placed back into the large cell. Only then did I really appreciate how tall he is.

I felt bad that he had been sitting in the county jail since last August with no bail. I felt bad for his mother. His 2 sisters. His little brother. And his 2 children. This whole thing really busted up a very tight family.

I also felt bad for the victim's parents. They were at every court date and looked at me like I was pure evil. And I am sure they were told all along that the man that killed their son was the person I stood next to in court. In the end, I wonder what they were told.

I went back into the courtroom. There was almost no one around. I grabbed the prosecutor by the arm and said "thank you."

"Don't mention it buddy. It was nice to see you again."




  1. What a great blog. Just goes to show that everyone makes mistakes, but those mistakes shouldn't be at the expense of someone's life. The defendant will never get those months back, and the victim's family is still left without closure after all this time. It is good to know there are some prosecutors out there who are fair, and are not out to secure a "win" at all costs.

  2. Great job!!!I am so happy to hear about this great news,its good to hear that there are a few good prosecutors in the office who are not over zealous, more or less able to recognize the evidence. With regards to the investigating det., they are a bunch of cowboys pushing the envelope to close the case without regard.....Great job again and congratulations!


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