Wednesday, May 26, 2010

Out on Tuesday, In on Wednesday

About a month ago I was called by the father of a young man. His son was recently released from the county jail on probation following a guilty plea on a gun case. The son was arrested again for possessing ammunition.

I was at the courthouse when I took the call. I told the father I was going to look up the case information in the computer and call him back. It was true the son plead guilty to a minor gun charge. He was released on a Tuesday and arrested the very next day. Wow. That seemed a bit fast.

I called the father back. The preliminary hearing on the new case was a week away. He would need to pay me some money to do the hearing. I also explained a petition for violation of probation was also filed. In effect, his son has 2 pending cases.

A few weeks went by without me hearing again from the father. But about a week ago, he called back. The son lost the preliminary hearing on the new case. I wasn't surprised. The son was also now being held with no bond. Again, not surprised (this always happens when a person on felony probation gets arrested for a new felony).

The father wanted to meet and pay me to take both the new case and the probation violation. We met last Friday. The father is from Darfur and speaks heavily accented English slowly. I explained all of the legalities and answered some questions. When it came time to pay me, we hit a bump in the road.

I don't normally write about what I am paid to take a case. I think it's tacky and no one's business. However, I live in a city where almost 100% of the people getting arrested for crimes I handle are from the low income areas. You figure it out.

This man didn't have much money. It's the kind of money that could maybe hire a criminal lawyer in Darfur. I told him there was no way I was going to take 2 cases for what little money he had. I told him I doubt any attorney in the city would. I was nice about it. He said he understood.

But he wanted my help. His son needed my help. The father works 2 jobs and 16 hours per day. He only had this little bit of money, but gets paid again in a week. Again, I gently resisted.

I thought he was going to very softly start crying. He may have. Something came over me. It happened quickly. In the blink of an eye, I realized I wouldn't be able to live with myself had I not taken what money he had and accepted the cases. I am not like this with everyone. I am no push-over.

But something reminded me I became a lawyer to help people. Here was someone asking for my help. Could I really say "no"? Was I going to go out of business by doing this case on terms he could afford? I accepted his money and prepared a fee agreement he could live with.

This morning I appeared in court for the son. I didn't have time to go to the jail and meet him ahead of time. But I spoke with him in the bull pen. He was very pleasant and appreciative. By asking a few questions I was able to fill in some holes about the new case.

In a nutshell the day after he got out of jail on his pistol case, 3 officers from the adult probation department showed up at the apartment where he lives with his father. They searched it. In the closet in his father's bedroom, they found some live rounds. He allegedly said they were his but had forgotten about them.

A few hours later, police officers show up and place him under arrest. That's it. The entire case. I told him I was going to talk to the judge and see if I could get him out of jail while this is pending.

Though I had never been in this judge's courtroom before, I didn't think he would be impressed with this case. I wasn't.

The judge came on the bench. My case was called. I arraigned my client.  Then I asked the judge to review bond. I offered a brief review of all the relevant facts and offered very little argument. I did say that given the facts, what the defendant allegedly did was not highly criminal. I also mentioned something about lack of mens rea. I asked defendant be released on I-bond (individual recognizance, or no money needed to walk).

When I stopped speaking the judge turned to the prosecutor. Because I spoke truthfully, not much came from the other side. Well, they didn't want him released because this is such a serious manner. Really?

The State would like to send him to prison for 1 year. Really? The prosecutor will get to elect which case to litigate: the new case or the VOP. I got the impression from the judge neither will fly very far. Over the State's objection he set bond at $500 cash.

Walking out of the courtroom with my client, I told him I would tell his father to use the money he was going to give me Friday to bond him out.

I can always get that bond money later.

The purpose of this post was not to show I have a heart. Rather it was written to illustrate how ridiculous my local criminal justice system can be, and often is. Couldn't the probation officers simply have told him that he needed to throw away the bullets? Couldn't they have offered to take them?

He didn't even know he was breaking the law or violating the conditions of his probation by them being there. I don't think he even knew they were there in the first place. No, instead they called the police. The police arrested him. Felony charges were approved. He was placed in the county jail where he's been for a month.

By being locked up this entire last month, all the tuition money he paid to go to school is gone.

And at the end of this, the State would still like to send him to prison. In this case, I can't help but see a tremendous waste of money and resources. This is typical, however. No one cares.


Friday, May 21, 2010

High Hopes Crushed

I have a client in the county jail charged with involvement in a series of armed robberies last year. His case(s) is/are not real good. I don't see anything but some prison time in this young man's future.

On Tuesday his mother called me. Her and I have had a lot of very long discussions. She trusts me. I was told her son (my client) got a letter in jail from Northwestern. The letter explained his file had been reviewed and numerous discrepancies were found. The letter went on to read that this organization is not for profit and has an outstanding success rate.

All sorts of red flags immediately went off. I know of the Center for Wrongful Convictions at Northwestern Law School. But as the name suggests, they only handle post-conviction matters. And most of those are murder cases.

How did this organization get access to his files? Why would they send a letter to someone represented by counsel? My gut reaction was to immediately call bullsh*t. And I did, but tactfully. I told the mother to tell her son to bring the letter to court this morning and I would read it.

As I suspected, the letter was not from Northwestern Law School or any organization associated with it. It was from some place called Northwestern Law Research Center. The letter was poorly written grammatically. I could tell no lawyer wrote it.

The address on the letter was no where near any law school or university. But it read as I was told. Discrepancies were found. Not for profit. Successful. Blah. Blah. Blah. I told me client I was going to go see if anyone had heard of this outfit.

It was the judge's birthday. All of the courtroom personnel were in chambers eating cupcakes and doughnuts. It was a festive mood. The judge said good morning to me and remarked about my tan.

"I don't mean to interrupt, but since everyone is here, has anyone heard of....?"

Both PD's chimed in at once. It's a scam I was told. They are out for social security numbers. Identity thieves. Really.

I turned to one of the prosecutors, "why aren't you guys all over this?" I asked, waving the letter at him. As it turns out, our Attorney General has been advised.

I felt bad for my client. He has been told for months about how bad his case is. All of a sudden he gets an official looking letter claiming his case is better than I have been telling him. He thinks an army of free lawyers are going to ride in and swing the jail door wide open.

Then I hand him back the letter explaining it's a scam and that he's still going to prison.

That sucks.


Wednesday, May 19, 2010

Confrontation Clause

Unless you're an attorney or a constitutional scholar, you might not have heard of the confrontation clause. This clause is part of the 6th Amendment. Basically it means a defendant has the right to face his accuser. For you really nerdy types, this clause was made available to the States by way of the 14th Amendment.

If a defendant shoots someone, the victim has to come to court, point at the defendant, and say "it was that person who shot me." There are exceptions, but this is usually true. I am sure this isn't a surprise to most of you.

Our criminal legal system puts a lot of stock in the right to cross-examine. Cross-examination is the courtroom confrontation of a witness. See the tie-in? What is cross-examination? Typically it's when the defense attorney questions the State's witnesses (or confronts them).

If the defense presents any witnesses, the State gets to cross them. In general, the 2nd party to question a witness is usually cross-examining them. What's the difference?

The most obvious one is that on cross, leading questions are allowed. Leading questions are asked in the way that the answer is suggested in the question. Here are examples of a direct (non-leading question), and a cross (leading question) seeking the same information.

Direct: "How old are you?"

Cross: "You're 35, correct?"

The difference may appear subtle. But in a courtroom with a skilled cross-examiner, they are worlds apart. Why do we want to cross-examine? We want to test for biases (a reason to tell the story one way or the other) and perception (could the witness have seen what he testified he saw). There are other reasons, but those are the big 2.

"You owe the defendant $10,000, don't you?"

 "You were around the corner when the shooting happened, correct?"

On cross, the lawyer does most of the talking. If cross is being done correctly, the witness just sits there and answers "yes" to almost every question. In effect, the lawyer is testifying, not the witness.

This give the defense attorney the opportunity to teach the jury about the case from the defense perspective. The defense attorney can use words and phrases to aid the jury in understanding the case better.

Watching a highly skilled cross-examiner is a thing of beauty. I am still working on it. I definitely know what not to do. This keeps me from stepping in it. But my timing and instinct still needs more work.

Our system usually disallows out of court statements as evidence. This is commonly known as hearsay. Most trial lawyers don't understand hearsay rules completely. I doubt I do.

Hearsay is defined as "an out of court statement offered to prove the truth of the matter asserted." What does that mean? Good question. Here is an example of hearsay. A witness testifying in a murder trial as follows "Billy told me he saw the defendant kill the victim." That is hearsay. It's an out of court statement, obviously. And it's being offered to prove the truth of the matter asserted, that defendant killed the victim.

We don't allow evidence like this in at trial because Billy was not subject to cross-examination by the defendant's attorney. There are a huge number of exceptions to the hearsay rule, but I am not going to even get into them here.

Curiously, however, the above statement could be allowed in to show Billy and the witness had a conversation at some time after the murder. Why? It would not be offered to prove the defendant killed the victim, but rather just to show a conversation took place. Again, confusing I know.

A recent Illinois case dealt with the confrontation clause. In this case, the defendant was charged with the domestic battery of his wife. At trial the wife was unavailable to testify. The State sought to introduce the 911 call where the wife says the defendant hit her numerous times.

Does the confrontation clause apply? Based on what I have written so far, you might think so. The defense objected to the admission of the call. The legal test is that only statements that are testimonial in nature are barred. What is testimonial in nature? Good question.

The trial court ruled most of the 911 call was non-testimonial. However, the part of the call where the wife said the defendant had hit her was barred. The State appealed that ruling. And the Appellate Court, siding with the State, reversed the trial court's ruling.


In short, prior court rulings have held that 911 calls were non-testimonial because the caller was describing an emergency. Also the 911 dispatcher did not ask questions designed to elicit incriminating statements about the husband, but were asked rather to determine if the caller needed immediate medical treatment.

If you think like a defense attorney, this ruling might sound a little off. The wife is not there to be cross-examined, but her statement that the defendant hit her numerous times is going to be allowed. I don't like it. This seems like an end-run around the confrontation clause. 

The court in this case, however, wrote that their ruling only extended to whether or not the confrontation clause bars the admissibility of the wife's statement the husband beat her. The court goes on to write "We express no opinion on any possible alternative objections to this evidence (whether grounded in the hearsay rule or other evidentiary principles). Any such objections that defendant chooses to raise may be taken up at trial.

Hmmm. Why would the Appellate Court put that language in a decision?

I think they are hinting there are other ways to keep the statement out. In other words, they are throwing the defendant's attorney a bone. Or a ray of hope.

I like it when courts do this. Was it hearsay? Um, maybe.


Tuesday, May 18, 2010

Honesty Sometimes Stings

I am often called and told about very problematic criminal legal situations. It's doubtful I am the only attorney being consulted. In some cases, what other attorneys supposedly say is thrown at me.

"Attorney Smith said if I pay him $1000, he will beat this case at preliminary. Can you do it for $750?" I hate calls like this. But they happen. I don't know who attorney Smith is. But if he's claiming he can beat cases if you pay him enough, I have problems with that. It's unethical and illegal. And it gives lawyers a bad name. We have enough problems.

When someone calls about a preliminary hearing I just tell them the truth. Most defendants lose their preliminary. They do. It's a fact. But I tell the caller if only a small amount of drugs were found, the case might get thrown out. This is also true.

What about a pistol case? Can I beat that? Probably not. Those almost always lose at preliminary. I have seen one beaten. I was the attorney. It was a unique fact pattern as opposed to the typical car search or protective pat down.

There is some myth about cases getting beat at preliminary. It's also as inaccurate as the myth about how easy it is to get house arrest.  These jail house myths spread by jail house lawyers can make my life frustrating.

Some callers already have their minds made up about how things are going to go. If I try to gently correct their perceptions one of two things happen. They either believe what I am telling them or they choose to argue with me. I don't argue on the telephone. I argue in court.

I run a business. I have to make money. I make money by taking cases. The initial phone call is where it all starts. If I have to spend time telling someone what they don't want to hear, it's unlikely I am going to be hired. Honesty can also be costly in the short term.

At some point they are going to realize I was 100% honest with them. But it will likely be too late. I have gotten calls like this: "We're sorry we didn't listen to you." I have yet to pull the trigger on the "I told you so!"

There are lawyers among us that only do preliminary hearings and guilty pleas. This has to be true. I see a lot of private attorneys at prelims. But I see so few actually in the trial court litigating by motion or trial.

I have a problem with that approach. If I take a case before the preliminary hearing, I am prepared to handle the case until it's disposed of, by whatever means. Of course, I have to be paid, but mentally I am already there.

Taking a case for an initial little bit of money with no intention to follow it through isn't client servicing in my opinion. We have two generic phases in a felony criminal case: preliminary and trial.

The phases are in different courthouses and in front of different judges. The preliminary phase is short and sweet. It's about 5 minutes worth of lawyering. Whereas the trial phase can equal months or years of work.

And I recently felt how lovely it is to have almost a year's worth of work tossed aside by a 45 minute verdict. That still stings. In writing this just now, I have figured out why so few of us litigate. It's work. It's a lot of work. And no matter how much work is put in, a bad outcome can still happen.

Losing a case that you have lived and breathed for a long time can really damage the spirit. I can't really describe what that type of loss feels like. It's unique. Maybe some can't handle it. Perhaps it's like losing the Gold medal hockey game in the Olympics. Or game 7 of the World close....but NO.

But my approach is still to go the distance, no matter how long that is.

At the end of the day, all I can promise is to show up and be a professional advocate for the defendant. Promising a bond will be reduced or that a felony will turn into a misdemeanor is dangerous business.

I don't like to make promises unless I am sure I can deliver. And I am never quite sure what's going to happen in a courtroom.


Friday, May 14, 2010

50 Rock?

I started playing the guitar around age 9 or so. However, it wasn't until high school that I took it seriously. My guitar was my best friend for a long, long time.

At 16 I thought being 30 meant being old. And I would have found it odd to hear about guys pushing 40 jamming out to music in a garage or basement. Such behavior was for long-haired, misfit teenagers. My music preferences at 16 were the usual classic rock suspects, Pink Floyd, Led Zeppelin and AD/DC for example.

Being an aspiring guitar player in 1987 I was a huge Eddie Van Halen fan. This picture is from around 1984. And Van Halen's album 1984 was the first heavy rock guitar album I played until the cassette tape wouldn't work.

No guitar player ever motivated me to pick up the thing like Eddie did. And no one ever made me frustrated enough to put it down. The first time I heard Eruption, I didn't believe it was a guitar played by a human that made those sounds.

But I discovered Van Halen in reverse. I didn't get into the old stuff until I got 1984 for my 13th birthday. I still think his guitar tone was at its best on that album.

I was also into the other 80's hard rock bands. The 80's was the decade of flashy guitar playing and I was a relentless student. I lived and breathed guitar driven rock music. It was all I listened to.

I remember my first car. But I remember the stereo better. It was a Kenwood cassette deck and if the key was in the ignition that thing was playing. I can clearly remember having the following tapes in my car all the time: Aerosmith's Greatest Hits, Van Halen I, AC/DC Back in Black, Boston's first album, and Led Zeppelin IV.

There were others that came and went, but the albums listed above were always in the rotation.

If you would have tapped me on the shoulder at 16 and told me that at 39 I would still be listening to a lot of the same music I would have believed you. Why would I ever stop listening to Van Halen?

Since I was a teenager, maybe younger, I have had a mental CD player in my head that rarely stops. Pretty much anytime I am awake there is a song playing in my head. And it's crystal clear. I will be running and have some completely random song pop in my head that I haven't heard in 10 or 15 years. More often than not, I will hear the whole thing.

I can actively listen to a song on the radio or on a CD while simultaneously playing another one in my head. This really freaks people out when I start humming the melody to a song other than the one we are listening to. 

It's not fun to get a song stuck in my head that I don't like. I was told the cure for this is to think of any Neil Diamond song. It works too. As long as I can have you here with me, I'd much rather be, forever in blue jeans...Oddly this is much like sniffing the coffee beans when cologne or perfume shopping. It cleans the old out.

Music that becomes a part of you is never outgrown. I might not listen to as much Motley Crue these days, but I turn up Looks That Kill whenever I hear it on Sirius. And I feel young.

I was 14 the first time I saw the Crue live. I will never forget that concert. Lots of fire and lots off explosions.

I have all of these great memories from high school that are stirred up by music. There are certain albums that will cover memories from an entire summer or fall of a school year.

One of my favorite 80's bands was Ratt. I was amazed at how good their guitar player, Warren DeMartini, was. Here is a picture of him from the 1980's. I wanted that guitar so bad. 

He was lightning fast and always seemed to hit just the right notes. He also played really cool looking guitars too.

The first time I heard Round and Round, I was hooked on this band. I followed them through high school and four albums. The fiery solos got better and the guitars cooler.

Since high school I have continued to play and still like guitar driven music. There have been times that I played more than others. When I lived in Austin, I was in a band that recorded a studio CD and played gigs a lot.

At one time in my life, albeit a short one, I made my living as a musician. I worked my butt off promoting the band, but it was a lot of fun. I miss standing on stage with my amplifier growling behind me. Hitting an open E chord through a loud tube amplifier feels like power.

When I left Austin I thought I had left my jamming days behind me. After all, I was going to law school. It was time to start my career and grow up. Party time was over. Bah!

Just because I became a lawyer doesn't mean it changed who I am. I didn't start listening to new music once I passed the bar. I didn't throw away a bunch of CD's because the lyrics are perverse and sophomoric at best. That stuff is fun. It's party music.

And though I don't party like I once did, I am not dead. Far from it. I may not like the booze but keep the radio on. And turn it up while you're at it. Thank you.

But I am not the only old person that still like this music. Some of the bands are still around. AC/DC toured last year for example. 

Picture their iconic guitar player, Angus Young, at 54 year playing his signature Gibson SG through a Marshall amp on 10. And doing it well. He has lost most of his hair, but he can still play. This is a recent picture of Angus.

Or how about when I saw Van Halen in 2007, reunited with David Lee Roth? There was my hero, Eddie, absolutely nailing Eruption and every thing else he played that night. I sang through that entire concert and listened to nothing but Van Halen CD's for a week. I still have all of the Roth-era CD's in my car. This picture is of Eddie during the 2007 tour.

I only missed seeing Iron Maiden because I didn't know they were in town. But I saw their documentary from the last tour. They can still bring it. And the lead singer is a licensed commercial pilot who logged many hours as they leap-frogged across the globe playing in every corner of it.

And even U2 are getting well aged. The Edge has no hair. Adam's hair is all gray. And Bono's signature mullet was ditched in favor of a short hair style much like my own. I saw them last summer at Soldier Field and they were amazing. Larry still looks young. He always will. [I don't care who you are, Bono is the coolest guy since Elvis].

I admit, however, that seeing some of these dinosaurs of rock seems a bit sad. I remember them in their prime when they were young. They drank and smoked too much. Any of them that have lasted this long had to of dried up at one point. And decades on the road coupled with that lifestyle makes many of them look much older than they are.

One founding member of Pink Floyd is dead. Two of the Beatles are dead. Ringo will outlive them all, I predict. Eddie Van Halen had a tumor removed from his tongue and a fake hip implanted. Mick Mars from Motley Crue also had hip problems.

When the day comes that Eric Clapton or Jimmy Page dies, I will feel a tremendous sense of loss. Though most of their great work was done about 30 years ago, still having them around and knowing they're alive makes me feel good. Jimmy still looks pretty good with that Les Paul in his hands.

Somethings are just simply timeless. How about Dave Gilmour of Pink Floyd and his signature black Stratocaster? Awesome!

Last night, Ratt played down the street from where I live in a pretty small venue. You may have been there. It's a bar called The Cubby Bear. It's right across the street from Wrigley Field.

I found out Ratt was touring a few weeks ago. They also released a new studio album. I bought it on iTunes. I like it. Through the benefit of modern recording studios, the production is very polished. The music sounds like it came from the late 80's, but it's a bit heavier. More bass in the mix, I think.

Warren is still in the band. The lead singer, Stephen Pearcy still sings. And drummer, Bobby Blotzer, hasn't lost a step. Ratt's original second guitarist, Robin Crosby, died a few years ago. In his place was former Quiet Riot man, Carlos Cavazo. He can smoke too. Here's Carlos from the 1980's.

Carlos' riff from Metal Health was the first really cool rock song I learned how to play on the guitar way, way back. A-D-G-G-C-C-A.

Here is Carlos from 2010.

I never saw Ratt live. I don't know what I was expecting last night. Honestly, I went to watch Warren. Being a guitar geek, I always like to look on stage and see what gear the players are using. I started doing this as a teenager. Nothing has changed.

Last night I stood about 10 feet from Warren. I walked right up to his guitars before the show. And I stood behind his amp rig. He was using Soldano amps.

Not a big surprise. Soldano amps are hand-made in Seattle and are expensive. Carlos had one too. They are known for hard rock/metal tone.

 Warren still plays Charvel guitars. Only now he has his own signature models. And Charvel is no longer a very small San Dimas, California manufacturer, making guitars by hand. These days, Charvel is owned by the giant Fender Music Corporation. The guitars are well made, however. Here is what his signature models look like.

Warren was simply awesome. He hasn't lost anything. His technique is a thing of mastery. I enjoyed watching him work. 

It's ironic that when I was 15, I would have given a couple of toes for one of Warren's Charvels. They were my favorite guitars. Today, however, I wouldn't trade him one of my PRS guitars for two of his Charvels.

Here is Warren looks like these days.  He has aged very well.

I played one of his signature models last fall. Eh. It felt like a Fender Stratocaster neck and I prefer a shorter Gibson Les Paul length neck. But Paul Reed Smith makes much better guitars than Gibson.

In case you're wondering, I prefer the McCarty, Custom 22, Single Cut, and DGT models. Here is what one of my guitars looks like.

Here is another one of mine.

 The irony is even a little thicker. The guitar I grew up worshiping turned out to be one I don't even like. I wrestled against Strat length necks for a couple of decades. Those were the guitars I thought I was supposed to play. One day a Les Paul ended up in my hands and that was all she wrote.

I am playing in a cover band these days. Our next gig is on June 24 out in Buffalo Grove. It will be my first gig in almost 10 years. It's also my first real cover band. I had mixed feelings about doing it. In Austin, musicians in cover bands are viewed as lower 6th.

I like the other guys in my band. I am the youngest, which sounds odd since I am almost 40. But the guys in Ratt are either in their late 40's or early 50's. I still can't get my head around that. When I was 16, dudes in their 50's didn't shred through loud, distorted amplifiers. I am smiling just thinking about how odd it is.

I am glad there are still some older guitar players around that record and tour. It makes me feel less weird still jamming out at 39. It lets me know that it's ok I still love the music. It lets me know it's ok to never stop playing guitar like I play it. It's part of me. Always will be.

At 16 I thought, well actually I didn't think about getting old. And I didn't think about anyone else getting old either. Deep down I am surprised these guys still play so well. But I shouldn't be. They have been doing it long enough. No, I think I am surprised they never stopped and put the guitar down.

I just subconsciously expected them to. Why? Maybe I felt it was a fad. And if I grow out of it, surely the musicians have to as well. Wrong. It's music, not fashion. People that grew up on Frank Sinatra still listen to Sinatra. Once music becomes part of you, it's permanent. At least in me it is.

My band plays no Ratt. No Motley Crue. No Metallica. No Led Zeppelin. But the stuff we play is well known to most people, and I think that's the point of a cover band. I will still get to stand on stage in front of a tube amplifier and hopefully help people have a good time.

And really, that's what rock and roll has always been about. A good time.

Thursday, May 13, 2010

Exigent Circumstances

I remember hearing about exigent circumstances during the O.J. Simpson ordeal. There was debate about whether the police had entered Simpson's properly lawfully while they were investigating the double homicide we all remember. This is where the term exigent circumstances popped up.

I didn't know what it meant. But like so many Americans, I tuned into Court TV every evening and pretended I understood the legalities of what was being reported. This was before the dawn of the modern internet. I can only imagine what the blogosphere would have looked like during the O.J. Simpson period. Come to think of it, I am kind of glad there was no friendly internet. That story had enough media attention.

At the time, I was recently out of the military. College wasn't even on my radar yet. But oddly enough, I think I ended up where I am today due to O.J. Simpson, in part. I remember watching the trial. I was impressed by the lawyers on both sides. Clearly, the defense team was more polished and plentiful. But at the time I thought Christopher Darden and Marcia Clark did a good job.

I bought a book a few months ago called Winning at Trial. It came with a DVD. On it are numerous clips of argument from both sides in the Simpson trial. Sadly, Darden and Clark's video was provided as an example of what not to do. There are also transcripts from the Simpson civil trial as well as Timothy McVeigh's criminal trial.

The writer of the book opined both plaintiff's lawyers did excellent jobs. Based on the transcripts, I agree. And they both won. Simpson is broke. McVeigh is dead. Win. Win.

Where was I? Oh...

The term exigent circumstances is often used when discussing the 4th Amendment. Most of you know that police need a warrant to come into your home and search or make an arrest. There are exceptions. Exigent circumstances is one of them.

What is it or what are they? This depends on who you ask. An easy way to think about it is as follows: exigent circumstances are those that exist to allow either a search or seizure without a warrant. Helpful definition I know.

Anytime there is a life at risk, the warrant requirement will probably be excused. Police are allowed to enter a home without a warrant if they reasonably believe someone inside needs emergency medical treatment. Or if there is an immediate threat to an officer's life. Or if the police are in hot pursuit of a suspect.

Exigent circumstances are assessed case by case. The Illinois Supreme Court has listed a number of factors that may be considered, such as 1. the length of time between the alleged offense and the entry into the home, 2. the likelihood of finding the suspect inside, 3. the nature of the crime the suspect is accused of, 4. the chance the suspect might escape, 5. was there an unjustifiable delay where police could have obtained a warrant, 6. whether the suspect is reasonably believed to be armed, and 7. was the police entry made peacefully.

No one factor is supposed to be given greater weight than the others. Also, these are not the only factors a judge may consider. The judge is supposed to consider these factors and any other that may be relevant. Upon consideration of the totality of the circumstances, a balancing test is done. Then, the judge rules.

Yesterday I had a judge rule against my client. There was a dispute about whether the police were invited into the home. To the judge's credit, he didn't make a credibility determination in his ruling. Instead he went through an exigent circumstances analysis and denied my motion.

If you're wondering why I wrote "to the judge's credit", here's why. If the judge rules my client consented to the police entering, I have no where legally to go with that. Neither will a reviewing court. That is a question of fact. Once it's decided, it's basically done.

However, by deciding the way he did, the ruling became a matter of law, not fact. Matters of law are always ripe for argument and easier to appeal. The judge gave me room to file a motion to reconsider his ruling. He probably wasn't thinking "oh gee, I want another motion from Mr. Schantz in this case so I can hear him argue some more. Let me leave the door open a little..."

I know he wasn't thinking that.

Now I get to write that motion, cite case law, and in a strongly persuasive manner, respectfully suggest the judge was wrong.


Tuesday, May 11, 2010

Bond on Bond

Being on bond means the defendant is released from custody while their case is pending. There are certain conditions of bond that depend on the case and the defendant. But one condition that's always in effect is that the defendant cannot be arrested.

Being in violation of bail bond is bad news. The State files the violation petition and it just gets ugly. Misdemeanor cases are not too problematic. However, catching a felony while on felony bond creates a mess. Here is a recent example of mine.

Client arrested for felony #1 is bonded out for $2000. He hires me before his preliminary hearing. We lose the preliminary hearing, but I see it's a good case at trial. I ask the cop questions that will help later.

A month later this case is arraigned and continued for a month. The night before the next court date, the client calls to tell me he has a preliminary hearing the next morning. What? You got a new case? You didn't think to tell me? You're out on $4000 bond on that one? You hired another attorney for the 2nd case? Oh...he's going to beat it at preliminary. Ah I see. Good luck. I will be in court tomorrow for your 1st case, waiting for you.

I walk into court the next morning. The prosecutors already know about the 2nd case. They have prepared a petition for violation of bail bond (V.O.B.B.). They ask if I know about the 2nd case. I tell them no, but the preliminary is probably taking place right now.

The client finally shows up at 11:00. He lost the preliminary. He wants to know if the judge is going to lock him up. Yep. Probably. The State filed a V.O.B.B. Bond has to be set on it. But I am already on 2 bonds? Yes, and now the violation of the first bond has to have bond set.

This is confusing. I know. The judge sets bond on the violation. The client needs $10,000 to walk. He is taken into custody right in the courtroom. His lady friend starts to cry a little. The first case is continued. The second case is coming to the same courtroom.

Now we have more problems. He has two cases. He has two lawyers. The State will elect to prosecute only one case. The non-elected case is just put on hold. Who knows which case will be elected.

Eventually, the client lets me know he wants me to handle the 2nd case as well. I show up to arraign it while knowing nothing about it (remember another attorney did its preliminary hearing).

I am wondering which case I am going to get to fight it out over. The 1st case was a Class 1 possession with intent to deliver. This was my case from the start. I thought it was a good case at trial. The 2nd case was a simple Class 4 possession.

In theory, if we beat the 1st case, the State can then elect to litigate the 2nd case. Having 1 felony case is a bad idea. Having 2 at the same time...horrible.

In the end, the client didn't want to fight anything. He wanted to plead on both cases and do his prison time. And he told me this, well whispered this to me, in front of the judge. 4 months ago this man wanted me to draw a sword and fight like a gladiator for him. Now he's not up for blood and guts.

I enter a plea of not guilty to the 2nd case and ask that both cases be passed. That just means they are put aside. I need to talk to my client. The very pleasant prosecutor whispers that she will look at the files and make me an offer.

Yes, offers. That's how most cases around here are moved along. Offer. Counter-offer. Counter, counter-offer. Acceptance. Deal.

Back in the holding cell I remind the client the worst part of catching a new felony while on felony bond...the sentences are ran consecutively by law. That's right, if found guilty or guilty pleas are entered, time is done on the first case and then time is done on the second case. That's consecutive sentencing.

To say he was stunned would be an understatement. As charged he was looking at a minimum of 4 years on the first case and 1 year on the second. So, it would be 4 and 1 at a minimum. I told him I thought I could do better than that.

I met with the State. This prosecutor is young. Last year at this time she was doing preliminary hearings. One morning she was all alone and things were a bit hectic. The judge was yelling at her. I helped her out and calmed down the judge. She must have remembered me. Or not.

I pointed out that neither of the State's cases were super strong. But I didn't do it in a threatening way. I was friendly. And it had been a while since my client had a case. But he has 2 cases now, counsel. Yes, quite right. 2 iffy cases. [Note: I hate being called counsel. Hate it. Hate it. Hate it. ]

She offered to reduce the possession with intent to deliver to straight possession and give my client 1 and 2 years. Oh come one, let's do 1 and 1. It sounds so much nicer. Ok. 1 and 1 it is.

The client took the deal. It didn't get any better. Each 1 year sentence will be about 61 days of real time. So 4 months on 2 felony drug cases that were bond on bond. That's a very good deal.

I wanted to fight though. I really did. But once again, an unattainably high bond help convince another to just plead guilty because it would get them home quicker than sitting in the county jail while fighting the case(s).

There has to be a better way to do this. Some might argue the system really works if my fight/defense would have been based on legal technicalities or failure of proof beyond a reasonable doubt. In other words, if my client was guilty in both cases, then justice was served. Perhaps.

But what if he's innocent of one or both? What happened then? If that's the case, he was coerced, directly or indirectly, into pleading guilty. I don't like that.


Monday, May 10, 2010

The 1000ft Law

A couple months ago I watched a young man plead guilty to possession with intent to deliver 10 grams of marijuana within a 1000ft of a school. His punishment: 1 year in prison.

10 grams of weed isn't much. It takes 3 times that amount to make possessing it a felony. Possession of small amounts of pot is the only drug crime in Illinois that is a misdemeanor. The class of the misdemeanor depends on the amount, but it's broken down like this:

Up to 2.5 grams=Class C
2.5 grams-10 grams=Class B
10 grams-30 grams=Class A

Most of the time, the cops don't show up to court for misdemeanor weed arrests and the case gets thrown out. If the cops do show up, the State usually offers court supervision. "Soup" as we call it, is the judicial equivalent to a little bitty slap on the wrist. If the defendant completes the period of supervision without getting arrested, the charge is dismissed. In other words, "Soup" is a non-conviction.

But possession with intent to deliver 10-30 grams is a Class 4 felony. Bring this within 1000ft of a school and it's bumped up to a Class 3. The State must have offered a plea deal and dropped the 1000ft from a school portion of the charge. How do I know this?

Because he got 1 year. The minimum on a Class 3 is 2 years.

Possession is proven by fact, but the intent to deliver is proven by circumstantial evidence. How was it packaged? Was there any money recovered? There are more factors. Our criminal code enhances several crimes if committed within 1000ft of schools...and churches, truck stops, parks, etc.

I think this makes sense. We want to keep drugs and guns away from schools. Absolutely. That's a no-brainer. The problem with this in Chicago it's often hard not to be within a 1000 ft of one the above at all times.

While the legislative intent is clear and makes sense, what typically happens is something else. Usually someone is unlucky enough to get caught walking down the street with something they shouldn't have. And they happen to be within 1000ft of a school or other protected area.

I have yet to have, or even hear of, a case of someone that got caught selling drugs to children near a school. Or to people leaving church. The parks get hit a lot. And there are no truck stops in Chicago.

On the same day I had a case where my client allegedly possessed about 2 grams of crack. I submit crack is more nefarious than weed. The State also alleged intent to deliver. His arrest was within 1000ft of a school.

As charged this was a Class X felony and not eligible for probation. Class X. Armed Robbery is a Class X felony. Home Invasion is a Class X felony. Attempt murder is punished as a Class X felony. Hmmm. Anyway....

I negotiated a plea deal. The within 1000 ft of a school was dropped. My client plead guilty to a lesser charge and received probation. A week later almost the same thing happened with a different client. This time it was within 1000 ft of a park. This client also plead to a lesser charge in exchange for probation.

And I had a client last week that got caught within a 1000ft of 2 schools. That was a first. Some schools are right in the middle of the seediest neighborhoods in the city. And 1000ft is almost 1/4 of a mile. That's a long way.

The 1000ft rule was put into the law for a reason. Why is the local State's Attorney regularly not enforcing it? I am not complaining. I think criminalizing someone caught with some rocks on a corner that's too close to a school the same as an armed robber doesn't make sense.

Someone actually caught selling to a school student should be penalized sharply. In our state, selling drugs to someone under 18 raises the level of the offense. It should. The 1000ft law was designed to keep drug dealing away from historically clean areas.

We don't want school kids using. I have never seen anyone getting high in church. And we don't want junkies hanging out in parks. Children go to parks. What about protecting areas where drug use is the highest?

Does the 1000ft law seem to say it's ok (or at least less wrong) to sell in bad neighborhoods? How about the projects? No, property ran by the Chicago Housing Authority is also protected. So are senior citizen homes.

It appears the charge enhancements are in place to punish certain crimes in vulnerable areas more sharply.  Drugs and guns bring violence for several reasons. Answer why they are being possessed and who is possessing them. The inquiry need not go any further.

To write in generalities, drug dealing is more problematic than the act itself. It brings a lot of baggage. The gangs control much of the drug business in the city. And with gangs come guns and rival gangs. This exact scenario is how a lot of young men end up getting shot here in Chicago.

Drugs bring in money from the users. The gangs fight over drug revenue. It's all about the money.

How do we end it? As long as there is a market for dope, there will be dope on the streets. And the people selling the dope will be armed and willing to fight to the death to protect their financial interests.

Have harsher drug laws worked? Nope. When Pablo Escobar was killed, did cocaine stop making it here? Nope. Would a naval blockade of South Florida have stopped cocaine from being shipped here? Nope. The cartels just move it through Mexico.

Did all of the special task force operations against clandestine meth labs stop meth use? Nope. It's now being made in Mexico. And it's purer and more addictive.

Something the law makers and lawmen don't understand, is that the demand is where the problem lies. People want to get high. Folks who have terrible lives want to get high to escape reality. That unchecked desire to escape life is the cause of so many problems.

When you're high there is no worrying about bills or career advancement. Drug use can turn off the part of the brain that makes most of us get up and go to work everyday. I am not talking about recreational marijuana use. I am referring to junkies. People that do nothing but use everyday.

Continuing to imprison the street level dealers isn't helping. Why? Because someone else is willing to step up and be the next dealer. This is easy money. And most people see the stretch worth the risk. 

Heroin and crack-cocaine are the two biggest plaques infecting Chicago streets. Crack and heroin are everywhere. And it's big business for everyone involved: dealers, the cops that make the arrests, the county jail that houses them, and the court system that administers justice. I am also guilty of making money from the drug trade. Wow. That is so true.

If we want to make our streets safer, reduce the drug demand. If no one wants to get high, the drugs will disappear. And the gun violence will go with it. But this problem of reducing drug demand is beyond me in scope. I don't have a solution. But I have ideas. 

A while ago I suggested paying cash to people who turned in guns. No questions asked. We recently did that here in Chicago. I wrote about it. People need an incentive to stay clean. Pay them. Give them something worth the effort.


Thursday, May 6, 2010

Accountability Theory

In Illinois one can be liable for the conduct of another if he helped plan or commit the crime. That is accountability theory made simple. It's given as a jury instruction and has a lot of teeth.

Here is an example: Billy and Jack are walking down the street. Billy wants to rob a 7-11. Billy asks to use Jack's gun. Billy goes into the 7-11 with Jack's gun and robs the store. Jack never goes inside, but knows what Billy is using his gun for. In this case, Jack is just as criminally liable as Billy.

Felony murder is causing the death of a person during the act of committing a forcible felony. I used the following example before: while committing an armed robbery, the victim is ran over by a truck and killed. That could be considered felony murder.

What's special about felony murder is that at trial, the actual murder, by definition, does not have to be proven by the State. The State only has to prove the underlying forcible felony and that the death occurred.

In other words, the intent element is taken out of the equation. It can be a completely accidental death, but if it happens during the commission of a forcible felony, it's considered a murder, by law. It is also sentenced as 1st Degree murder.

A recent Illinois case caught my eye. You can read it here. But here it is briefly. A group of people planned to rob a store. The defendant drove some of his friends to the store but never went inside. Two friends went inside the store. A store employee, who was outside, flagged down a police officer.

Before the officer could enter the store, the two friends came out of it. The cops gave chase.  The two were lost from sight a few times, but eventually caught. A gun was found on one of them. Back at the store, an employee was found shot to death.

Several months later, the defendant (driver) was arrested. During a series of interrogations, he admitted driving the friends to the store. He also admitted he knew they were going to rob it. He denied, however, knowing anything about a gun.

The defendant was tried and convicted by jury based on accomplice liability theory and felony murder. In this case, the underlying felony was attempted armed robbery and the accountability issue should be clear.

The defendant appealed on several grounds, but his conviction was reversed due to lack of guilt beyond a reasonable doubt on the issue of felony murder. How? I thought the same thing.

As I was reading the case, the accountability issue wasn't in question. He helped plan it. He drove the would-be robbers there. That's a done deal. But who actually killed the victim? A-ha. The State never proved who did.

A firearms expert testified the gun recovered from one of the boys didn't fire the bullet that killed the store clerk. Hmmm. That's pretty big. There was also evidence of other people being the store when it happened. And the police officer admitted he heard no gun firing at any time.

The analysis is: "accountability requires proof that the defendant shared with the person who actually committed the crime for which the defendant is sought be held accountable a common design."

In this case, the State failed to do so. But which crime? The attempted armed robbery or the felony murder? The water gets a little muddy because this case piggy-backs two legal principles used to expand criminal liability.

Felony murder isn't usually planned. It just happens. So I doubt there could be a common design for the shooting. That leaves just the robbery and accountability liability is pretty clear.

The appellate court reversed this conviction because the State never proved either of the two boys killed the victim. I am not sure I completely understand the legal principle this is based on, however. But the court wrote that there was simply no evidence either boy shot the clerk, let alone fired a gun that day. Maybe it's simpler than I thought.

To you non-lawyers, this may seem really weak. I already know what you're thinking. I thought the same thing. I know what happened. The real murder weapon got tossed or thrown down the sewer. Trust me, when chased by cops, people throw things they are not supposed to have. This includes drugs, but especially pistols. And double especially pistols that have a fresh body on them.

But before you think the Illinois courts have gone berserk, the case cited by the defendant's appellate attorney for this legal standard is a Federal case from the 7th Circuit. In that case, there was a large gang shooting. Someone was shot and killed. Defendant and a friend were there. They both had guns. They both fired those guns. However, neither had the gun that killed the victim, thus no accountability. Conviction reversed.

I haven't seen the record from this trial, nor will I. But if a reviewing court has to speculate about how the victim died, the appellate court probably got it right. In my mind, if speculation is required, then guilt beyond a reasonable doubt hasn't been proven. Speculation is just a fancy word for guessing. 

I have a feeling this one isn't done due to the felony murder issue.


Tuesday, May 4, 2010

The Civility of Criminal Court

Before I did criminal defense work, I never brought work home with me. I used to be a suburbanite. Riding the train home from downtown everyday, allowed me to cleanse myself of work stress before I got home. I never thought about work when I wasn't at work. And I never had dreams about work.

In my mind, however, though a licensed attorney, I didn't much feel like one. Or at least what my mind had always thought a lawyer was. When I would meet people and they would find out I am an attorney, the next question always followed, "what type of law do you practice?"

"Workers' compensation defense" I always answered while trying to keep a straight face. And the token response was "oh". Then I would try to make my job sound interesting. But I would always fail because it wasn't very interesting to me. It was boring, repetitive, mundane, and nothing I did seemed to ever matter.

I was a machine. I sat in an office, behind a desk, and billed hours for my bosses. I was never underpaid per se. I had good benefits. However, if I was being paid, say $50 an hour, but my work was being billed at $200 an hour,  someone was profiting off my work.

I know about overhead and the salaries of the non-lawyer employees, but the partners were lining their pockets with every hour I billed. But it's their firm and that's how it is. At some point I made a realization: I could go the rest of my professional career earning what someone thought I was worth, or I could work for myself and earn what I am indeed worth.

[Note: I am not offering an opinion about lawyers that do what I used to do. It's honest work. It takes intelligence and attention to detail. It just wasn't for me.]

Somehow I ended up doing criminal defense work in Chicago. This isn't the career trajectory of someone wanting to build wealth. At least not in Chicago. The fat cat PI lawyers make millions suing insurance companies, which causes all of our rates to keep going up. These guys are the high rollers and they are whom most lawyer jokes are about. I don't hate them. I don't even really know any of them. But I could never be one.

My heart could never have been in litigating over money. I played a part in a civil jury trial and the lawyers in civil court are much nastier and contentious than we criminal attorneys. And a fellow criminal attorney recently pointed that out.

Think of all of the horrible things people do to each other over money. Take that and feed it into an adversarial system full of lawyers. What comes out the other end is big money litigation. And it's fierce.

During my last trial, all 4 attorneys and the judge were in chambers. I don't remember what we were talking about, but it was friendly. And it usually is. My co-counsel remarked that both defendants, if convicted, would spend the majority of their lives in jail and here we were chatting it up with the prosecutors like friends.

There are probably at least a few reasons that criminal court is more civil than civil court. First off, there's not too many of us lawyers. With 39 felony trial courtrooms for city of Chicago cases, at 3 per room, that makes 117 felony trial prosecutors. That number may sound like a lot, but it's really not. The State's attorney moves her assistants around very frequently.

I am constantly running into the same people over and over again. And the younger prosecutors I have known since they were in misdemeanor court (in some cases). 

I was told by a judge to always maintain good relationships with the State. That was good advice. I don't kiss butt, but I am courteous and respectful. And I look around the see defense attorneys who have been here for 30 or more years. There's even less of us in the defense bar. And the old ones, well they look really, really old. 

My point is that it's unwise to make enemies in such a shallow pool of lawyers. You never know who will end up a judge. And most of the Chicago criminal judges are ex prosecutors.

Defense attorneys and prosecutors are not that chummy though. I have yet to see a scene like something from Raising the Bar. There is definitely an Us v. Them mentality on both sides. And I will never trust a prosecutor fully. No matter what, their job conflicts violently with mine.

The reality is that it's the rare case that goes to trial, thus most matters are disposed of by way of a plea deal. Having the 1st chair prosecutor as an enemy isn't going to help the client if the case has to be plead. For my money, the best deals are made when everyone involved is as pleasant as possible. If you want a good deal, be nice. That's my rule.

As a side note, some judges approve all deals in their courtroom. Just yesterday I had a case where my client was caught with a gun. It was his first felony in about 15 years. He was scared of being robbed. I felt his fear was more than reasonable. But, he shouldn't have had the pistol.

The 1st chair ASA in this courtroom isn't a super pleasant person. Last year in a different courtroom, she shoved a case so far up my rear that my waist size expanded 2 inches. But I was always nice. It was a crap case, but she didn't do my client any favors. And I never forgot.

Speaking with her about the current matter found that nothing had changed. She said no probation. Prison. Prison. Prison. But my client is 45, epileptic, and has about 12 teeth of which 3 are in his right pocket. He hasn't had a case in 15 years. Too bad. This time, however, we are on different grounds. New courtroom. New judge. And this judge controls the deal making.

The judge initially said he would give my client the minimum 3 years. I opened my mouth. Then I shut it. A minute later, I walked out of chambers with probation (over the State's objection) and a feeling of satisfaction. Heh.

Was the money the client paid me to take the case from the PD and make 1 court appearance worth it? I don't know. It wasn't much. Way less than I would pay to stay out of prison.

Some defendants and/or their family think PD's work with the State. In reality, they do. Everyday. Those folks have to work together since they deal out almost all of their cases. But the perception is that due to this closeness, the PD never has the defendant's best interest in mind.

I know this to be factually untrue. But perceptions are what they are. Some private defense attorneys take it too far in the other direction. They come into court snorting and acting like jerks. Though it's probably done for show, I think it's counter-productive. No one likes jerks in my business. I mean no one.

If looking like a hard-ass is the only way that a client can be kept happy, perhaps that's a case better left alone. You can have it. But at the same time, it's important to actually have a spine and let everyone know it's there. Not everyone will test you, but when they do it's important to stare them down.

The main reason I think we are all relatively nice to each other is because of the work. I have written in the past there we are all part of the same criminal justice system. And I think in some strange way it bonds us. We all chew the same fat but from different angles.

This is very dirty work. We are not in criminal court dealing with Enron-type crimes. This is Chicago and it's always been a violent city. I predict it always will be. We see, hear, and read the true crime stories that feed movies, television shows, and books. This work is very up close and personal. But after a while you get numb to it. At least I have. For the most part. Some of it can still make me cringe.

I think I have written before that sometimes my job seems like something out of a movie. It really does. I go to the jail and hear things. I go out on the street and hear other things. I see guns. I see drugs. I see crime scenes. I see evidence. I see pictures of dead bodies. It doesn't get any more real and gritty.

But yet we in the business somehow carry on like probate lawyers. I can be in court on a very violent case talking with the prosecutor about baseball before the case is called. It's very strange. I think we all have some type of self-protection mechanism that keeps the work from eating us alive. For a while, I was honestly worried it might happen to me.

As recently as January 2010, I was, at times, feeling like I was being consumed by the very nature of my work. Not the work itself. The nature of the work. It would appear that a couple of long weekends in Mexico staring at the Pacific Ocean while watching the sunset every evening sorted me out. Or so I hope.

Back to the civility bit...

When I was in the military I was in the infantry. And we looked down on anyone not infantry. Again, it was Us v. Them. But in a time of war, we all need each other. We need the supply people to bring us food, the gun bunnys to throw 155mm Howitzer shells at the enemy,  and the helicopter pilots to fly us around.

We were all part of the same Army. There is a major difference between my job now, and my job then. In the military everyone is working towards completion of the mission. In criminal court I wish I could be naive enough to claim everyone is working for justice. But it simply isn't true.

No, in criminal court all sides have their own mission and it often conflicts with the mission of others. But somehow we remain fairly harmonious while having competing interests.

It's because there's always tomorrow and a new case.


Saturday, May 1, 2010

Peaks & Valleys

This time last week I was suffering from the sting of a guilty verdict in a murder trial. My first one. No, not my first guilty. My first murder trial. I wanted to win so badly and I still think I put on a good trial.

But as some have pointed out, you never can figure out or understand jurors. The problem is that we lawyers think like lawyers. And while most of the time it's probably an asset, I think it can also be a liability.

In the limited amount of time I have spent in front of a jury, I have tried to keep things simple. I use words they can understand. I avoid legalese. And I don't use cop jargon. I try to see the case through their eyes. But I can never know what they're thinking. Are they even listening?

Just because they are looking me in the eyes doesn't mean I am being listened to. When I was a kid I used to be able to look my dad right in the eyes while being lectured, and not hear one word. If I can do it, so can everyone else.

There are juror specialists that study the psychology of jurors. They can be hired (for big money) as consultants. They claim they can put 12 in the box that will go your way. I don't have big money. Neither do my clients. If they did, they wouldn't be my clients. But I digress.

They don't teach you how to pick juries in trial advocacy in law school. I try to read as much body language as I can. In my jurisdiction, we get to speak to the prospective jurors. We can ask them limited questions, but cannot get into issues surrounding the case.

I was told by a very successful trial attorney to just get up there and talk to them about anything. And so I do. "What books do you read?" or "How do you get your news?" I ask these types of questions. I am more interested in how they answer versus what they say. Basically I am trying to see if the person likes me enough to have a conversation in front of a bunch of strangers.

I did that for last week's trial. And I was pretty happy with the jury going in. But the trick of voir dire is not so much picking the jurors I want, it's getting rid of those I don't want. Both sides do this. Whenever I have had a really nice chat with someone during voir dire due to a common interest (say running for example), the State has used a peremptory challenge.

Last Friday morning when I was giving my closing argument, I thought I had at least half of the jury. I had heads nodding with me and it appeared they liked what I said.

So much for appearances, body language, voir dire, and all of that. 45 minutes of deliberation was all it took to come back guilty on all counts. It would seem that all I think I know about jurors is incorrect. But I don't think so. I think my instincts about that jury were wrong.

I know at first vote there had to have been a few on my side. But I think they gave in and joined the guilty folks. And that was that.

A couple hours after the verdict when I was able to see again, I remembered I had another murder trial set for this past Tuesday, April 27. Initially I was afraid last week's guilty would linger and cause me an extreme amount of anxiety. I was afraid that I would be afraid.

Surprisingly any reservations I had passed. By Saturday afternoon I was finishing preparing for the next trial. I didn't brood about jury selection or worry that it (bad jury) would happen again. In my mind, it's counter-productive to worry about the past. Learning from the past is one thing. But being stuck in the past is another thing entirely.

If you have been reading, you know Tuesday's murder case was dismissed. Everyone was happy. My client is home. Onward I move. A not guilty would have been so nice. It would have evened up last week's loss. But I can't think like that. This business is not about trial statistics. It's about getting good results for the client.

My client is home. He doesn't care how or why. His case took on a life of its own inside me. At some point early on, it was clear he was innocent. The police put this case together. And I put it on me to free an innocent man. I said to myself: "this is the case you were born to try."

I may be biased, but I like that level of motivation. It kept me up at nights knowing he was in the county jail as innocent as myself. But I would eventually sleep and dream of the trial.

Though his case was dismissed, I still take credit for getting him out. I know how I did it. The prosecutor knows how I did it. The client doesn't care how I did it. And it doesn't matter how I did it. I did my job. I protected my client's interests. I held the State to their burden of proof. When I showed them they could not meet that burden, they folded.

And so while last week ended in a huge down, this week took off on a much higher note. Through the rest of the week, I got a couple of really good plea deals. Today, however, I had a 4 month old motion to exclude evidence denied.

Being a criminal defense lawyer in my jurisdiction and handling the cases I do, is a dirty business. It's raw. It's gritty. It's real. And it's unforgiving. I get beat up daily. If you're not thick skinned, this isn't the business for you. If you can't make major decisions on the fly, stay behind a desk.

I am starting to realize that most of the criminal lawyers in Chicago are not trial lawyers per se. It seems like everyone involved, including the State, go out of their way to avoid trials. Because of the enormous size of the local system, 26th & California operates more like the game show "Let's Make A Deal". But Monty Hall is curiously missing.

I see the same attorneys week after week, but I see so very few of them ever litigating motions let alone trying cases. I see attorney after attorney show up in court when either a motion or trial is set and come up with some excuse why they need to continue the case. "Well judge, I am in Federal court today...."

I know for a fact that some attorneys just drag the case out long enough in the hope the State gets tired and finally makes an acceptable offer. I am not sure I could ever operate this way. It's usually me chasing the State down because I am ready to fight it out. Showing up in a suit to repeatedly continue a case for no reason is not lawyering in my book. It feels like a waste of time.

But I also hear of lawyers that get paid every time they go to court. Hmmm. Now it makes sense.

Why there are not more trials around here, I can only speculate. Laziness comes to mind. And jury trials are scary as all hell. Plus there will usually be one loser. No one likes to lose. In my limited experience, I find jury trials to be both frightening and liberating at the same time. If you want to be a trial attorney, you have to love a stage.

Whenever I address the jury or question a witness, something in me changes. I can be nervous to the point of being nauseous. But as soon as I get off my butt, everything is different. I wish I could describe it. Somehow I am suddenly relaxed. The volume of my voice elevates to an appropriate level and my rate of speech slows. I still forget things though and probably always will.

The timing of my cross is getting better. I am becoming more attuned to the stress level of a witness. And I am learning how to keep them there to exploit it. When someone is testifying in court and they are lying, subtle (or even obvious) clues are there.

During last week's trial, a witness for the State, wearing jailhouse clothes, kept looking down and away during my cross. Why? Because he was lying and he knew I knew it. I can't remember how many times I caught him lying and impeached him with his testimony from that day.

It didn't matter though. The jury obviously didn't care. The most brilliant cross-examination won't overcome a jury that isn't interested. And that sucks.

The best that I can do is maintain myself in a lukewarm state. The wins or good outcomes feel great. But the loses are terrible. It's impossible to stay on a high all of the time. And the higher you get, the more you fall when you come down. And we call come down.

My celebrations tend to be short. But so does the pouting after a loss. Wins and loses are in the past. Tomorrow morning, there is always another case, for another client, in another court room. And no one there cares about what happened yesterday or last year.