Tuesday, June 29, 2010


Late last year I was hired to represent a man on a drug case. He was arrested while sitting in a legally parked car. I filed a motion to quash arrest and suppress evidence. I conducted a hearing on that motion. I thought it was a really good motion, but the judge felt otherwise and denied it.

On the next court date I met with the judge and the prosecutor to discuss a possible plea. The client asked me to do so. This man had a pretty extensive criminal background. I plead his case as best as possible to the judge, but the sentence offer was pretty stiff in my opinion.

I relayed the judge's offer to the client. He asked for a continuance to think it over. This case had some merit at trial for reasons I won't discuss. He decided to take the matter to trial. On the next court date, however, I was replaced by another attorney. To put it another way, I was fired. This doesn't happen often, but it does.

The attorney replacing me is someone I am pretty friendly with. He was one of the first attorneys I spoke to at length back when I was first starting out early last year. I like him. He's an ex-prosecutor and a pretty nice person. We always chat when we see each other.

He took over the case for me in early February. Since then I have asked him how it was going. Rolling his eyes is how he always responds.

This morning I ran into him again. He said something like this: "You did an awesome job in that motion hearing. If I take the case to trial, I am just going to use your transcript and ask the exact same questions."

I asked if he was jerking me around. No, he was being honest. And apparently, the prosecutor on that case has also remarked at how well I did, including during the 402 conference where we discussed a possible sentence with the judge.

It seems no one could figure out why I was fired. But based on how things have progressed since I was replaced, I am quite happy I was let go. Some headaches are just not worth it.

This little 5 minute conversation made my month. It's not often we get an "atta boy" in this business, especially from another attorney. Just yesterday morning I declared that I wanted something good to happen...to someone...anyone. I needed a pick-me-up.

I guess Mick Jagger was right, sometimes we get what we need.



Monday, June 28, 2010

Chicago's Handgun Ban

Today the U.S. Supreme Court held the city of Chicago's handgun ban is unlawful. I haven't read the 200 + page decision nor will I. It seems no one is surprised by the court's decision. But I need to remind you, it wasn't a unanimous decision. In fact it was 5-4 split. So while most thought this was a no-brainer, 4 sitting Supreme Court justices thought otherwise.

This was a very legally complicated case, but a similar case was decided recently. In Heller, a petitioner challenged the Washington D.C. handgun ban. Remember, Washington D.C. isn't a state, thus Federal Law rules supreme in D.C.

The Heller court held that the D.C. handgun ban violated the Federal 2nd Amendment and was unlawful. Most people think, and incorrectly so, that the Amendments in the U.S. Constitution's Bill of Rights have always applied to every American at all times. I know I used to. But this is false.

It wasn't until the 14th Amendment was passed that most of the bill of rights were made available to the states. Prior to McDonald v. City of Chicago, it wasn't known whether the 2nd Amendment was applicable to the States. Or to put it another way, whether the 2nd Amendment could be held against the states.

The Supreme Court's majority thinks it is and, therefore, the local handgun ban is unlawful, just as the Washington D.C. version was.

I predicted, and incorrectly, that the Supreme Court would uphold the ban by ruling the Federal 2nd Amendment couldn't be held against the states. I thought they would punt the issue and cite the long history of Federalism. What I mean is that I thought the court would rule that this is a state issue and the Federal 2nd Amendment didn't apply.

Clearly the states can create and enforce their own gun laws. In some states, concealed carry permits can be obtained. Illinois is not one of them. In some states, hunting with rifles is allowed. Illinois is also not one of them. And I know laws differ across the country with respect to assault rifles and other quasi-military weapons.

So the state have some say, but apparently not the ultimate say, at least in terms of banning one type of weapon in favor of another.

As I wrote, I have not read the decision, so I cannot offer comment on how the court reached its decision. I chose to write about it because I consider this whole issue to be an entire waste of time, energy, and money.

The handgun ban was put into effect in the early 1980's. It makes it illegal to own a handgun within the city boundaries. In other words, it could be legally purchased but not legally owned.

In Illinois, a Firearms Owner's Identification Card (FOID) has to be obtained before a resident can legally purchase a firearm of any kind or ammunition. FOID cards are issued by the State Police after a criminal background check.

Thus, a Chicago resident with a valid FOID card could buy a pistol but couldn't register it with the city of Chicago. Does this make any sense? It doesn't to me. Violation of this city ordinance is only a misdemeanor. Most people don't know this. And it's almost never enforced. Most people don't know this either.

Here is why the ordinance is almost never enforced: most people caught with a handgun are either convicted felons or they get caught with the pistol outside of the home. In either case, it's a state felony.

The handgun ban didn't criminalize possessing a handgun outside of the home. In most scenarios that was already illegal under state law. The state laws about how weapons must be transported are very strict. The city handgun ban had no effect on the state laws.

Did the handgun ban somehow thwart the efforts of criminals to arm themselves? Absolutely not. Since most criminals could likely not obtain a FOID card, they could never legally own or possess a firearm based on state law alone.

And again, for a would-be bad guy with no criminal background who legally purchased a pistol, possessing the weapon outside of the home would almost always be illegal. Thus, the handgun ban was meaningless in terms of curtailing street crime.

But the city handgun ban was a polarizing issue and largely misunderstood. Our local Chicago Tribune has a Breaking News section on its website. Readers can post comments about the stories. I read almost every story of violence reported, but more importantly I read many of the reader comments.

With so many shooting and murder stories making it online, the handgun ban always seems to get mentioned. And that but for the ban, lawful folks could gets guns to protect themselves against the city's street thugs. But as I have already discussed, a gun still cannot be carried outside the home under Illinois law.

Some, however, get this and instead write that we should have concealed carry permits in Illinois like they do in Texas and Oklahoma for example. Perhaps. I might have a different opinion on this idea if I lived in a neighborhood where I felt carrying a gun in my pants would make me feel safer.

But as I have written, if it gets that bad where I live, I am moving far from here. I don't think having to carry a gun for protection is much of a way to live. But I do understand that for many, they have no choice. They are stuck where they live. They are surrounded by lawless thugs who show now care for human life.

And in two instances recently, a person in such a predicament shot and killed two would-be robbers/burglars who had broken into their home. Neither man was charged with violating the handgun ordinance. And the support for both couldn't have been stronger by the online news crowd. In fact, many wrote that it was about time the residents of Chicago fought back.

Although any rhetoric I may have offered wouldn't have been as strong, I had no problem with what happened. You break into someone's private home, there is a chance you might be killed. I am cool with that. This is yet another reason I felt the handgun ordinance was simply ignorant.

Now that the handgun ban is about to be tossed out the window what's going to happen? Maybe some will seek a FOID card just to keep a pistol in the home for protection. I think more FOID card holders will purchase handguns and keep them in their homes. Maybe some will sleep better. I think a number of people who already had them anyway will register them. But I think the large majority of current pistol owners will do nothing.

But will the ban's lifting have any effect on street crime? I seriously doubt it. And that's why this has all seemed like such a waste. It really didn't matter. The purpose of the handgun ban could only have been to make Chicago appear as if it was tough on crime by implementing strict gun laws.

However, the handgun ban completely missed the mark if that was its purpose. Remember, it was during the handgun ban era that Chicago lead the nation in murders. But if I made myself clear in this writing, that shouldn't shock you since the ban was indeed meaningless on the streets.

In summary, it's still illegal to possess a gun on your person or to keep one in your car that's loaded, uncased, and immediately accessible. In other words, not one thing changed today for Chicago's streets. But, if you have a valid FOID card, soon you may keep a handgun in your home if you so choose. 

Or at least you can do so now legally.



Saturday, June 26, 2010

E-Personas and Blogs

The internet allows almost everyone who plays to have a voice. Some folks have more than one voice. Back before message boards and blogs, I knew people who wrote things in emails they would never say in person.

Some people have "E-Personas". What I mean is that some people's personality on the internet is much different than who that person really is. I suppose it's possible that the internet version is the true person and the day-to-day variety is reserved, repressed, or simply scared to show true colors.

I can't imagine how frustrating that has to be. This if life, however. Sometimes keeping ones mouth shut is necessary for survival, especially in the corporate world. Imagine you had a very nice high paying job for Corporation A, but in secret, despised its business practices. The internet would allow you to carefully express your frustrations if you chose to. You could join a message board, a listserv, or perhaps start a blog.

Since I began using email in the early 1990's, I have been consistent. I am always me. Over the years, I have participated in various message boards that discussed topics ranging from Gibson Les Paul guitars to Distance Running to Tube Amplifier Repair. I have met people from various boards and I am always told I am just like my online self.

I have also done online dating, which is a little scarier. But I also used a recent picture and wrote things about myself I felt were accurate. I wish I could say that was true for everyone, but sadly, it's not.

The Internet is by far the biggest technological advance I have seen in my lifetime. I have been online since 2400 baud modems, UNIX servers, and Cello. The World Wide Web was almost non-existent. Almost no commercial businesses had a web presence. It was mostly universities.

I predicted the WWW would be a game changer but it's gone beyond my wildest dreams. My life these days is interwoven with it, but I could still survive without it. I think. But, I wouldn't want to. The Internet has made my life simpler.

But I fear the digital age is having a negative impact on the young. Social skills seem to be disappearing since communication, for the most part, is no longer done in person. Or even on the phone.

I text regularly with the person I have the closest relationship with. However, we can still talk in person.

The blogosphere is a strange place. Anyone can write about anything. And anyone writing can be anyone they want to be. A lot of people that blog or comment on blogs are fake. You could start an anonymous blog claiming to be a professional musician, write about associated topics, but in reality be a beginner on your instrument.

And people could anonymously comment on your blog, also claiming to be a professional, but not even play an instrument. I amazed at how convincing people can write while knowing very little. But I am even more amazed at how easily so many people are fooled into believing what fakers write.

For this reason, the Internet can be very dangerous. I can't walk into the Chicago Tribune, hand them a story, and see it on tomorrow's front page. But I can write a blog post, hit the publish button, and it's there for anyone to read. And it can be completely false, incorrect, misleading, propaganda, rumors, gossip, plagiarized, or any number of other adjectives.

The Internet is quite the gathering place for misinformation. But some people write simply to piss others off. They offer snarky comments and add nothing to a discussion. And most do this behind a veil of anonymity.

There are also the blog authors that become unhinged when someone gently disagrees with them. If you can't handle someone disagreeing with you, why publish where anyone can read what you have written?

The legal blogosphere is no exception. Some authors write with a pretentious tone. They belittle younger, inexperienced attorneys and criticize colleagues, sometimes harshly, for almost anything. At times, it's downright childish. I have always found Internet flame wars lame. And a waste of time.

I don't personally know any other lawyers that blog. But I don't read many legal blogs, and  comment on even fewer. The blogs I do read are authored by attorneys that I feel are real people and not some hot shot, holier-than-thou, lawyer that spends more time blogging than in court.

The pissing contests that I have seen on some blogs by disagreeing attorneys has at times been humorous. But too often, it's been enough to make me stop reading that blog. Completely.

One of the reasons I typically don't like lawyers is that so many of them don't listen and only want to be heard. Last I checked, we have 1 mouth and 2 ears. 

I fear that many attorneys, who might have some interesting things to write about, have been dissuaded by the trolls that simply like to argue, but offer nothing to the discussion. On some level, I must have feared the same thing since I tend to write for non-lawyers.

When I started this blog, it was designed to give me a place to vent. Criminal defense work is very frustrating and I found a certain cathartic value by opening up and writing about my day to day headaches. But I never set out to educate other attorneys, or anyone for that matter. I don't know enough to teach.

I think some people find what I do for a living interesting. It's for them I write. If attorneys from other jurisdictions read my posts and make comparisons, that's great. I have no idea how many regular readers I have. I know only 2 people are registered followers. Yep, that's right, just 2.

But based on the anonymous comments here and there, I am sure there are more than just 2 that read my posts. And for those of you that do read, thank you. You might be happy to know I am the same in person as I am online. Well, actually in person I am pretty quiet, unless it's appropriate for me to talk, i.e. in court, for instance.

Some attorneys take blogging quite seriously. Nothing wrong with that. I am sure some people take blogs about gardening very serious as well. But, I think some people need to really lighten up.

If your blog or E-persona, is the sole means you have to generate attention to yourself, you probably have bigger problems than comments on your blog's content or flaming people on Twitter.

And it's hard to believe that some of you are as acerbic in person.



Tuesday, June 22, 2010

Seeing Is Disbelieving

I had a jury trial set for yesterday. It didn't go. One of the State's witnesses had a last minute scheduling conflict. So, we kicked the case. No, we didn't all get our files and kick them out of frustration. We rescheduled the trial. In my world, we call that kicking (to a future date).

I have had this case since the first of the year. It's a pretty serious matter. Two young men were shot several times each on the south side last August. I am pretty darn sure I have an innocent client.

In February I went to the location of the shooting to have a look around. It was very cold and snowy that day so I didn't look around much. But last Thursday as my trial preparation was gearing up, I went back to look again.

Over the course of the previous couple of days, I reviewed the statements the purported eyewitnesses gave police. And like every time I read a police report, I attempted to visualize the story the witness was telling.

In my line of work, I come across impossible stories regularly. When those stories are attempting to put one of my clients away for life, I have to attack it by all available means. Going to the crime scene is an invaluable tool in this endeavor.

I think it's possible to read a witness statement of an incident a thousand times, but never truly understand it until it's digested in the background where it happened. In this case, this was certainly true.

I don't want to discuss particulars about the current case since it still has to go to trial. But going to where it all happened and comparing statements has given me a lot to work with on cross-examination.

However, last year I was hired on another shooting case. I viewed the crime scene photos dozens of times.

In that case the shooter walked through a muddy gangway on the side of a house. All of the expended bullet shells were found near the entrance to that gangway (that's what we call the space between houses in Chicago...a gangway or if you're from the streets a "cut").

The State's witnesses were on the porch of an adjacent house. In their statements they claimed they could see the face of the shooter as soon as he came out of the gangway. Though I questioned their stories, looking the pictures didn't offer me anything to support my hunch.

Then I went to the crime scene and stood on that porch and looked over to where the shooter stood. What did I see? Nothing but a tree that extends five feet to the front of the property. When I went and stood behind it, it covered me from mid chest all the way up. But I could see the porch well enough to shoot at it.

But how did I know this was where the shooter stood? He could have jumped out into the yard exposing himself, right? Crime scene photos showed bullet strikes on the side of the porch. The boy that was shot was hit while on the porch.

I went and stood next to the porch and saw the bullet strikes. Knowing the bullets tend to travel in straight lines, I turned around 180 degrees from where the bullet hit and looked. What did I see? That tree again.

While the witnesses might have been able to see a body back there, they couldn't have seen the face of the shooter. And especially not be able to see his baseball hat and remember what it had written on it.

Whenever I go to a crime scene, I always take my trusty camera. In some instances, I end up taking pictures that are similar in scope and angle to those the evidence technicians took. But guided by my theory of the case, I always photograph additional things and cover more angles.

In a few cases, I have been able to stand where a witness claims he was.  And once there it was obvious the statement wasn't accurate. It has been very obvious.

I bet that no prosecutors visit crime scenes. I don't think detectives do it either. I don't know how anyone can litigate a serious crime without having stood in the crime scene. It's amazing at how easier the case is to understand once your eyes are pulled into the investigation.

But, I am a visual person, so take it for what it's worth.



Sunday, June 20, 2010

No Where But Here

I didn't grow up in Chicago. I am an Illinoisan, but a down-stater. Ever hear of Abraham Lincoln? He's pretty popular in my hometown.

There are a lot of things about Chicago I don't like. We have the highest sales tax in the country. Cook county can't balance its budget. It's not car friendly. Winters are harsh. Mayor Daley. The violence. The Cubs. Gas is too expensive. And the perception is that Chicago is the corporate headquarters of political and police corruption.

But there are some things I love. And summer is one of them. Having lived in Texas for 4 years, I can really appreciate a mild summer. I also love the lake. We have great restaurants. A pretty skyline. Some people are quite friendly. The public transportation system works...more or less. I am also told we have some great museums, but I have not been to one of them.

Buckingham Fountain is pretty cool. The South Loop is now very modern and upscale and West Loop is quickly catching up. Downtown is very clean. It's a pet friendly city. I heard about a bar not far from where I live where you can bring a dog inside.

The real value of Chicago to me is the opportunities. And I am speaking to those of a professional nature. I started my own law practice. Though not initially in the criminal business, the work didn't take long to find me.

And once I started doing criminal work, there was no looking back. It was as if everything lined up perfectly and I was shown what I was supposed to do with my law license. I had no idea how much criminal work was here in Chicago.

The numbers are staggering. Cook county averages 1000 felony arrests per week! That means every week, about 1000 people need a criminal attorney. As a comparison, there are usually about 3000 misdemeanor arrests in the county. But most people don't hire a lawyer for misdemeanor cases.

Cook county is divided into 6 municipal districts. The city of Chicago makes up the entire 1st district. Of the weekly 1000 new felony arrests in the entire county, 700-750 are 1st district cases. About half of those are drug related. There are usually about 20 each robberies and burglaries and 40 or so gun cases. Retail thefts account for up to 50 or so.

Clearly there is a need for criminal defense attorneys in Chicago. But most accused felons cannot afford one, thus there are not many of us around. Instead the public defender's office is overworked and understaffed.

I estimate there are about 12,000 open city of Chicago felony cases at any given time. I typically have less than 30 of them. The felony criminal justice system in the city of Chicago is a volume based business. There are too many repeat customers. Also everyday hundreds more young men turn 17 and will spend time in the county jail before they turn 18. 

The point of this post was to illustrate that no where but here in Chicago, could I be doing what I am doing for a living. And for that, I am truly thankful. I would like to think that I am not simply preying on the misfortune of others. Do doctors prey on patients because they are sick? The sick need physicians. The criminal accused need lawyers.

I see myself much like a doctor. Wait, more like a heart surgeon in fact. [Note: when I entered college, I wanted to be a heart surgeon, so forgive this analogy]. When a patient needs a heart surgeon, there are some pretty serious health problems in play. When an accused needs a felony defense attorney, there are some pretty serious allegations in play.

Not everyone that sees a heart surgeon has a great outcome. Not everyone who sees a defense attorney has a great outcome either. Some patients are too sick. Some defendants have bad cases.

Right now I get to handle only the cases I want. I never did traffic or DUI. I haven't handled a misdemeanor since last fall. And earlier this year, I stopped handling retail theft cases. White collar crime isn't on the radar. Currently, it's drugs, guns, robberies, burglaries, stabbings, shootings, and a few murders. 

Chicago crime, for a Chicago lawyer.

I thought I was done writing this post. I was about to click the "Publish Post" button and let this one sail. But, I am not done. Not yet.

Everyday I sit here and read about shooting after shooting. It seems there is no end in sight. I have already written about the gun situation here in the city. Gun laws clearly don't work. Even if we didn't have a handgun ban in Chicago, it wouldn't matter. The bad guys will still be armed.

But recently two would-be burglars or robbers were shot and killed by a citizen armed with a handgun in their home. Neither was charged (as far as I know). Perhaps the message is clear: if you're a law abiding citizen, keeping a pistol in your house might be a good idea.

As much as it goes against my gut instinct, if the Chicago handgun ordinance gets lifted, I might have to buy a gun. The violence is simply getting out of hand. Or has it always been this way and I am simply new to the scene? Probably the latter.

Thinking about it a little more, I doubt I will get one. I feel safe inside my home and in my neighborhood. My 6 month old German Shepard is naturally protective.

When I take him outside at night his eyes and ears always find someone lurking around.  And he barks at people that look suspect. I don't know how this dog knows the difference between the harmless and the creepy. But, he does know.

The only time I would really feel safer with a gun would be in the parts of the city where I am most likely to be the victim of crime. South and West. But even if the handgun ban is lifted, I still couldn't keep a gun in my car. Or at least not configured so I could use it. And I couldn't keep one in my briefcase either.

So, what's the point of me owning a gun? If it ever gets to the point I feel I need a firearm to feel safe in my own home, I think it will be time to move.

If nothing else, I am practical.



Wednesday, June 16, 2010


I admit I am still a little shell shocked about April's guilty verdict. Since then I have been plagued off and on by anxiety. It happens mostly when I have something set for litigation. There are times I dread going to court. Why?

I think it's the losing that really bothers me. We defense attorneys don't win much. I don't think we are supposed to. So, we tend to redefine what winning means. A clear win is a not guilty verdict. Or a motion to suppress that's granted. Or perhaps getting a case dismissed. Those are awesome wins.

I know lawyers that do death penalty cases. And in trials they lose, they consider it a win if they get life in prison as opposed to death. I get that. There have been cases where I have been able to negotiate an awesome deal. That's a win. Getting a bond reduced. A win.

I have set myself up to recognize almost anything positive as a win. It helps keep my spirit up. Trust me, doing criminal defense work in Chicago, and especially the type of cases I handle, is like begging to get the shit kicked out of you. And then coming back for more.

Sadly I don't seem to savor the wins long enough. There is always another case in the next courtroom or on tomorrow's calendar. It just never ends. But the loses can haunt me and there's where the problem lies.

Since I don't have 20 years in the business, anytime something goes wrong, I question my abilities as an attorney. I think it's natural. But it stinks. It sits inside while eating away and rotting. I can feel it. It's horrible.

Why am I so torn up about a bad verdict? There are lots of reasons. It's not pride. My ego isn't really involved. I know I have a lot to learn. I realize only experience will sharpen me into the lawyer I will ultimately become.

The reason is because another person's freedom is tied to my ability and skill as an advocate. There it is. It's really that simple. My client in the last case is now just 18. The crime happened when he was 16. He faces a minimum sentence of 45 real years, in real prison. His adult life is gone before it started.

And I am constantly asking myself: was I good enough? Sure there are things about that case that still make me wonder. I had a jury that didn't want to be there. They gave a very quick 45 minute verdict on a bad case for the State. And the fact that everyone in the courtroom expected a not guilty. Or maybe that I have solid legal grounds for a new trial? Or perhaps that one day a reviewing court will send it back for a new trial should it not be granted by the trial judge?

All of that just might be rationalizations I have created to make me feel better about a miserable event. Or they might be legitimate and I am simply too hard on myself. If there is any solace in that case, it's that the co-defendant was also convicted. And his attorney is one of the most experienced homicide trial attorneys in the county. She says I did a good job. But is she just being nice?

I have definitely been in a funk since mid April. Never mind that the very next week I got a murder case dismissed on the day of trial. That didn't count to my psyche apparently. It was quickly forgotten. It didn't even out the guilty verdict the week before. Not even close.

I often Tweet about the State not being ready for suppression hearings and trials. And I do it in a complaining manner. But in some cases, I admit a little part of me has been relieved.

Being a litigator is interesting. It can go from absolutely terrifying one moment, to euphoric the next. It definitely gets my adrenaline flowing. Standing up and speaking in court, whether it's in front of a judge or jury, is an opportunity. It's an opportunity to sound like a skilled lawyer or a complete boob.

And even when there's no jury present, there are still plenty of others hanging around to humiliate yourself in front of. I have seen and heard other lawyers make idiots of themselves. And I fear I will too (or already have).

Some of the things I have written about in this post, are probably the reasons most lawyers never go to court. And even of those that actually appear in court, so very few litigate. And even fewer try cases. And even fewer than that try criminal cases. And yet, still fewer try the serious criminal stuff like murders where the stakes are incredibly high.

Litigating at the high stakes table plays hell on the nerves. It can't be good for the body. I have a double attempt murder trial next Monday. And my client wants a jury. Ok, he gets his jury. But sitting here now more than 5 days out, my forehead is already getting oilier and I can feel a breakout coming.

Next I will start sleeping poorly. A lack of appetite will follow. And I will loose weight. Coffee, alone, will sustain me for days. Then the trial will finally start. I will stand up to do my opening and the fear will disappear before I open my mouth.

I am a total mess for days leading up to the big show, but once it starts, I relax. Of course I get nervous again before closing arguments. But again, once I stand up to talk, I quickly calm. I wonder if it will be like this forever?

And despite all of this, it still feels like this is what I am supposed to be doing. There must be something really wrong with me.



Thursday, June 10, 2010

The Client's Choice

Last summer I was hired to represent a young man with no criminal background. He's not in a gang either. It seems last spring a house was burglarized. There were no witnesses. No sign of entry. But about $1500 worth of property was reported stolen. The homeowner thought a small box had been moved by the bad guy.

An evidence technician lifted 5 latent fingerprints from the box. This young man had at one time been arrested for something minor. The case was later dismissed. However, his fingerprints were in the AFIS system. If you have ever watched CSI when they have ran a fingerprint to see who it belongs to, the idea is the same. But it's not nearly as cool looking nor is at as fast.

1 of the 5 prints lifted from this box got an AFIS hit. And it lead detectives to the young man. The other 4 prints neither belonged to him or the home owner. Based on that evidence alone, the young man was arrested and indicted for residential burglary.

This is a perfect example of a very weak case skidding through the grand jury. That one latent print was the only piece of evidence. Really. That was it. Because he had no criminal background he was released on house arrest. I was hired soon after.

I first appeared in court for this case last July. While my client had never been in the burgled house, he did know another young man that lived there. He told me that earlier last spring (around the time of the burglary) the boy from that house tried to sell him a watch on the street. The watch was in a box. My client touched that box to look at the watch. He did not buy it.

Could his print have come from that box? Maybe. We need to see the box.

I figured that either the cops inventoried that box or at the very least the evidence technician had photographed it. I filed a motion to produce that box and I issued a subpoena for the crime scene photos.

4 months later I was finally told the box wasn't inventoried and there were no photos of it. I drafted a motion to exclude the fingerprint evidence since the State could not produce the thing or even a picture of the thing from which the print was lifted.

4 months later I finally got a hearing on that motion. The judge denied it. So, the print was coming into evidence. Oh well, let's go to trial. I didn't think there was enough to convict. All I had to do was put my client on the stand and have him tell the story about the box he did touch. Simple.

Before I got the hearing on my motion to exclude, the client did something stupid. He violated conditions of his bond. The sheriff picked him up and he went and stayed in the county jail. That was dumb on his part.

Residential burglary is typically not eligible for probation. There is an exception. Drug probation can be ordered. After the judge denied my motion to exclude, the prosecutor who argued against me, suggested we have the defendant evaluated for drug probation. The State normally doesn't agree to drug probation. They knew they had a weak case.

I really wanted to try this case. I thought it was a winner. And I was angry the State had delayed so much. But I told my client that drug probation could be an option. He was interested. An evaluation was ordered.

Yesterday was the first time back in court since the motion hearing. The evaluation was back. The defendant was eligible for drug probation. It seems that marijuana use has strayed him from the path of righteousness.

I met with the client in the lockup. I gave him the following options:

1. Set the case for trial next month. If we win, it's over. If we lose, the judge could sentence him to drug probation or 4 to 15 years in prison, or:

2. Plead guilty, get sentenced to drug probation, and go home tonight.

I told him the choice was his. I explained over and over what a felony conviction means. While I felt very confident about his case at trial, I couldn't guarantee a win. And if we lost, I couldn't guarantee the judge would sentence him to probation. I had to be honest, there was a chance he could go to prison.

I wish I was clairvoyant. But I have walked out of a courtroom too many times wondering what the hell had just happened to get in the prediction business. And not just on my cases.

The decision had already been made. He went home last night a convicted felon for a crime I seriously doubt he committed. And I don't feel real good about it. At all. I had the file open for 11 months.

The case was postured towards trial since day 1. The motion to exclude the print evidence was something I had to do. The fact that motion was denied in no way caused me to fear a trial. This was a good case.

But once again, another young man jumps out of the felony window just to get home.

If the system is supposed to serve justice, it failed. But if the system is designed to indiscriminately make our youths convicted felons, it worked brilliantly.

Well done.



Monday, June 7, 2010

Help a friend, go to jail

I have often heard the expression no good deed goes unpunished. I even tried to get a jury to buy that sentiment a couple of trials ago. It didn't work. Here is a story that reflects that saying loudly.

Late last summer a young woman began to have problems with her boyfriend. The relationship was turning abusive. The man was calling her job all day long. He would even come and stand outside of her work at times. It was a major disruption at her place of employment.

In early fall she had enough. She moved out. Friends from work helped her move. A short time later the boyfriend moved in with her. Again. And a short time after that, the fighting started. Again.

One Saturday in September she was moving out. Again. The boyfriend, however, was causing problems and wouldn't let her get packed. She calls this man named Mike several times that day. She needed help. Again.

Mike is a pretty smart guy. He could smell trouble a mile away. Mike was among one of the few friends that helped her move just 2 weeks prior. They worked together. Mike knew about the problems this woman had. Mike was a little upset she took the boyfriend back. He now wanted nothing to do with it.

She eventually gets Mike on the phone. Mike doesn't want to get in the middle of what's going on. He's in his late-50's. He's been around. But she explains to Mike that the cops are already at her house. There will be no trouble. She just wants to load a few things in his van and leave. Mike agrees.

Mike drives to her house. He sees the cops when he pulls up. He also sees the boyfriend on the other side of the street. The woman yells to Mike from the upstairs window. The cops realize he's the person that's come to help the woman move her things.

Mike stands outside talking to the cops. He never goes inside the house. He never helps the woman put anything in his van. But he sees that she is loading small boxes and plastic bags. Mike tells the cops about this couple's problems. The cops have been there before.

The boyfriend is across the street, but now near the van. Mike notices he is writing on a piece of paper, but thinks nothing of it.

After about 10 minutes the woman says she's ready. Mike says bye to the cops. They get in his van and drive away. Mike takes the next right turn. About 5 minutes later he sees police lights in his rear view mirror.

He pulls the van over. Immediately cops, with guns drawn, are yelling at him to get out of the car. He does. The woman is also removed from the car. The van is searched.

Police officers find a small pistol and some crack-cocaine in a bag. Mike is immediately arrested and charged for possessing both. The woman is set free.

Mike denies knowing anything about the items found in the van. They must have been hers he tells police. He's booked anyway. The next morning he goes to bond court. Though Mike has no felony or misdemeanor convictions, he is given a $50,000 D bond. It takes 3 weeks for his family to put together the $5,000 to bail him out.

A couple of weeks after Mike makes bail, I am hired to represent him.

Through my investigation I quickly learn what happened. When Mike saw the boyfriend writing on the piece of paper he didn't think too much about it. He should have. The boyfriend was writing down the make and model of the van. But more importantly, he was noting the license plate number.

As soon as Mike and the young woman drove away, the boyfriend flags down the next cop car he saw. He claims a man and a woman in a van had just robbed him. And the man had a gun. He gives the cops the make, model, and license plate number of Mike's  van.

A call goes over the police radio and almost immediately Mike's van is spotted and stopped.

Sometime later that day, the cops figured out what happened. The boyfriend was arrested and charged with filing a false police report, a misdemeanor. He was let go from the police station. He had to post no bond.

Apparently none of the cops put 2 and 2 together because Mike still got the felony case. The boyfriend went home. And the girlfriend was never arrested.

Mike's case was set for trial today. The State wasn't ready. I can't wait to try this case. I want to see the look of disgust on the judge's face. Mike was a Marine infantryman in Vietnam. He was honorably discharged at the rank of E-5 and earned a purple heart. Since then he has attended some college and trade school. He has worked here and there over years always earning an honest paycheck.

But he's not in to drugs and guns. Instead, he's a nice guy who helped someone he thought was a friend. And he got burned for doing so. The CPD, had they given a crap, could have easily seen what happened. The boyfriend has only been to prison 7 times.

Once again, no one cared.



Saturday, June 5, 2010

Shock & Awe

A couple of events happened here in Chicago the last couple of days that have me shaking my head. I don't know much about either story, but the media is having fun. And the public is speaking out on at least one of the stories.

Last month an arrest of a Chicago cop was thrown out by a judge. The cop caused a traffic accident that killed two Hispanics back around Thanksgiving in 2007. The accident occurred at 3:00 am on a local city street. Apparently no one bothered to check and see if the cop had been drinking...well until 8 hours later. Not surprisingly, his blood alcohol concentration was within legal limits.

The cop was charged, however, with misdemeanor DUI. Charges were later upgraded to a felony after prosecutors obtained video footage of the officer drinking inside a bar right before the accident. The bartender would later swear the shots he was serving the cop were really water.

Though the State had no concrete proof the cop was drunk at any time, a prosecution expert gave hearing testimony that based on the amount of alcohol the cop was seen drinking in the video, he would have been legally drunk at the time of the accident. Apparently the preliminary hearing judge didn't buy this opinion and the case was dismissed.

Then the press got a hold of the drinking video and aired it on the news. As you can imagine there was a huge outcry from citizens and politicians alike, thus reckless homicide charges were brought (by way of grand jury indictment, I suspect).

But in April, the judge, hearing this case, ruled the police had no probable cause to detain the cop initially. Or to put it another way, there was no basis for his arrest. On Friday, June 4, 2010, the State had to drop the charges.

People are upset. Blame is being cast on everyone from Mayor Daley to the judge, to the Chicago Police, to the police superintendent. The whole story just smells and tastes bad. But where should the blame really lie?

I don't know. I have not been in court once when this case was up. But I know this judge. And I don't think he's throwing the case. You must ask what evidence he had before him. Judges don't get to guess and speculate. They rule based on what proper evidence has been submitted.

Apparently first response police officers and paramedics all claim the cop showed no signs of being drunk at the scene.

At the time the facts were: a horrible collision at 3:00 am on an inner city street resulted in the deaths of 2 people. And apparently the cop's vehicle had exceeded 60 miles per hour, which is damn hard to do where this accident occurred. The scene must have been bad.

Based on those facts alone and the totality of the circumstances, I have to believe any cop on the planet would have checked for drunk driving. I don't do DUI cases, but having someone in custody for 8 hours before giving a breathalyzer doesn't make much sense to me.

A police lieutenant testified the cop smelled of liquor and had bloodshot eyes when he saw him later at the police station. This same lieutenant, however, also admitted he had lied to internal affairs regarding this incident. There's a credibility issue here.  

Either one of two stories is accurate: the cop was not drunk at the time of the accident. Or, the cop was drunk and was protected by his fellow officers. In order to believe he wasn't drunk, you would have to also believe he was really doing shots of water at the bar. Now I have drank water at bars many times, but never from a shot glass. But, I suppose it's possible he was drinking water.

Back in April when the judge quashed the cop's arrest there was quite a ruckus at the courthouse. I was there. It was noisy. I saw one lady being dragged from an elevator by sheriffs. I had no idea what was going on. It wasn't until later that day when I read the story that I figured it out. But the scene that day was pretty bad. Lots of yelling. Some crying. And tons of deputies.

But I am not jumping on the bandwagon and blaming the judge. If the cops messed up the case, that's on them. Did some police officers simply protect one of their own?

That could be true. Or it could not be true.

Last week our local Fox affiliate ran a story about judges that, in Fox's opinion, leave work too early. I didn't see or read the story, but I heard about it. However, since I hadn't viewed the story, I didn't know which judges were allegedly caught playing hookie.

Last night I was shocked to find out that 4 judges were recently reassigned (fired) by the Cook County Chief Judge. And I am regularly in front of 3 of them. They are felony preliminary hearing judges. I like all 3. They are all fair. 1 of the judges, especially, is well respected by scores of people from defense attorneys to assistant state's attorneys to deputies that have worked in his courtroom. He's simply a very good judge.

The preliminary hearing courts don't go all day. Neither do the trial courtrooms at 26th & California. But a preliminary hearing judge's workload in comparison to a trial judge is pretty light. A case is in their courtroom usually just once.  There are no trials. No sentencing. No motion hearings. They conduct very brief probable cause hearings and find for the State on almost all cases.

Personally, I don't care if they are home at 2:30 sitting in the sun. What are they supposed to do if they are done for the day? Really. The Cook County sheriff said that the average time a courtroom closes in the criminal division is about 2:30. This includes all criminal courtrooms.

The preliminary hearing courtrooms also start at 9:00 whereas the trial courtrooms start at 10:00, or whenever the judge feels like it (sometimes close to 11:00). The preliminary hearing courtrooms also usually have a shorter afternoon call that starts at 1:30.

On a normal day, I am done with court by 12:30. Obviously trials and motion hearings go well into the afternoon or take all day. However, on a typical day, I am home by 2:00. My office is at home. 

In the summer, whenever possible I am outside running at 2:30 every day. Is Fox going to do a story on me that leads something like this "Local attorney enjoys some sunny recreation while clients sit in jail." Perhaps I shouldn't tempt them. That could be spun very badly.

I can guarantee that story wouldn't include the fact that I work 7 days a week and spend a lot of weekend time in the jail with those same clients.

What's the big deal? Fox sends out some cameras that film a few judges leaving work or at home after work, and now it's a witch hunt.

This is the media at its worse. Tell the story so slanted that officials must react and people lose their jobs. I am most ashamed that the local chief judge didn't make a statement in support of his judges. Instead, he got rid of them very quickly. And now one judge has sued Fox for $7 million.

Fox does not want me on that jury.

What do these 2 stories have in common? Simple, the reaction. And it's a reaction that was desired and created on purpose. The alleged drunk cop case is sad. It really is. But go to the link to the story and read the comments that people have left. The sadness continues. That story was written to evoke the sentiment it earned.

A sitting judge made a decision extremely unpopular with many Chicagoans. He had to have known it would cause loud outcry and dissent. And he also knew that decision would be heavily scrutinized by his superiors. Would he throw away his entire legal career over a DUI case that involved a cop? Or was he following the law and had a very weak case in his courtroom?

If there is any monkey business going on with this case, look at why the case was weak. A case starts with the police department. It wasn't the judge's fault no breathalyzer was immediately done. It wasn't the judges fault a few other police officers and someone from the fire department claimed the cop showed no signs of being drunk at the scene.

Without some other evidence to rebut such testimony, what is left? Not much. Oh wait, a police lieutenant with credibility issues offered contradicting testimony. The judge's ruling on the motion to quash arrest did not concern guilt or innocence. That's a trial determination. A motion to quash is a legal matter. This is entirely different.

On a motion to quash arrest for lack of probable cause, the judge has to ask "what did the cops know at the time of the arrest?" Apparently this judge felt there was no evidence the cop was drunk when he was arrested. It's really that simple.

We all might speculate that based on the facts, the cop was drunk. A judge cannot do this. Engaging in pure speculation and assuming the cop was drunk without proof (and in the face of testimony he didn't appear to be so), would only lead to a later reversal by the Appellate court. It really would.

My common sense tells me this cop was loaded and was protected by some buddies. But if I am the judge hearing this case, I am not sure there was evidence to support this assumption. This judge is not a dumb man by any stretch. Nor is any judge. He probably knew what the score was. And I am sure it pained him deeply to have to follow the law.

He was probably asking himself over and over why didn't you blow the guy immediately?

Based on what admittedly little I know about the actual case, I trust the judge did his job as he has sworn to do. I guess I have that much faith in our judges.

Regarding the comments made about this case, I am amazed at how many people offer such passionate and harsh opinions without knowing more than a few hundred words of text on a computer screen. Apparently some people really do believe everything they read and are incredibly moved by it. What happened to independent thought? How about critical thinking?

I don't think there are enough shepherds these days to attend to all the sheep. 



Wednesday, June 2, 2010

Out and In (revisited)

Last week I was called by a young man about his case. I won't get into many details, but he was in a fight back in April. Actually, he was jumped by 3 guys. He removed a small pocket knife and stabbed an attacker that was lunging at him.

The next day he found out detectives were looking for him. A few hours later he went to the police station and turned himself in. He was arrested and charged with aggravated battery. The next morning his bond was set at $150,000 D (this means $15,000 or 10% would be needed for him to walk).

He was unable to bond out.

A few weeks later was his preliminary hearing. The victim came and testified. The judge found no probable cause. I was told his preliminary hearing attorney caught the victim lying several times. Good.

That night he was released from custody. He went home. He thought the case was over. Wrong.

The State ran the case through the grand jury. He was indicted. He got a letter from the State informing him he had court this morning. Failure to appear would result in a warrant for his arrest being issued.

I was hired to be there this morning and to take the case to trial. I told him that the State would have to set bond in his case. In other words as I told him, he could get locked up again.

And that's exactly what happened. Despite my passionate protestations, the judge set a high bond. Only the bond this time is $100,000 D ($10,000 to walk).

This is simply silly. If this case couldn't get through a preliminary hearing where the burden on the State is ankle-low, how do they expect to get a guilty conviction where the standard is ceiling high? And now, the case has been upgraded to Attempt First Degree Murder. Really?

[Note: you would have to understand how easily ridiculously weak cases get through preliminary to really understand how shocked I am.]

Do they think he won't fight? Do they think he will readily plead to the lower charge of aggravated battery and say "thank you"? Is this some sick human chess move to force this young man into prison?

Not on my watch. Message to State: You charged the case, now prove it.



Bloody Weekend

I don't have an exact count, but from reading the news, it appears there were about 40 shootings in Chicago this past weekend. The shootings stopped on Sunday morning when the storms set in over the city and dumped rain down most of the day. However on Sunday night, as the skies cleared, the shootings began again.

Even women were getting shot. At least one person was shot inside his own home by burglars. One young man was shot several times in the face. Several were shot in the chest.  

At least 6 people died as a result of these shootings.

The shootings were not isolated in one area either. Most of the shootings happened in the low income neighborhoods spanning from due South, to Southwest, to finally the West side. Shootings are nothing new or uncommon in those areas.

As I sat at home on the North side of the city, I felt so far removed from what I was reading about. It was hard to believe I live in the same city. At no time was I fearful to go outside. 

Though the news made it seem like parts of our city looked like Beirut, I felt safe. I went to a wedding on Saturday night. No one I spoke to mentioned the weekend violence. This could be for a couple of reasons. Either no one else knew or it's not the type of thing to discuss at weddings. I don't go to many weddings, so I honestly don't know.

But everyone that night was carrying on like nothing bad was happening only a few short miles away. And really, I didn't give it much thought. I was enjoying a nice piece of meat for dinner and the open bar.

The Cubs were home this weekend hosting St. Louis. There is a police station a couple of blocks from Wrigley Field. Imagine the difference in police work between dealing with drunken baseball fans and chasing down drive-by shooting, gangsters in Chatham or Roseland.

This city has a sad dichotomy. On one hand it's extremely beautiful. A run along Lake Michigan on a sunny morning is a sight to behold. The lake has a majestic quality about her that I have never experienced before. There is also a lot of history here. Many old buildings in the loop give Chicago its character. City Hall comes to mind. Or the Board of Trade. Or the Opera House. Or the old Post Office. There is some stunning architecture downtown.

But on the other hand, Chicago can be the most violent city in the country. The city continues to have a tremendous street gang problem. Heroin is still the street drug of choice. Pistols can be readily had for $50. Many locals don't trust the cops. The low income areas seem to just get poorer and poorer. The city schools have issues.

And on a beautiful holiday weekend in 2010, when President Obama was supposed to be relaxing at his Chicago home, we had 40 shootings.

Did the President know?

When I took speech in college my professor told us that most people disregard bad news subconsciously. NIMBY. Not in my backyard. I was taught that to move an audience you have to put the issue in their backyard.

Let some of this street violence make its way up North. When these shootings start happening in Lakeview backyards I can guarantee something would be done to stop it. Some local politicians called last month for the National Guard to be brought into our violent neighborhoods.

I am not sure I am there yet. But I get it. I really do.

I don't physically have a backyard. But when people start getting shot on corners around where I live, I might have to move. I doubt the violence will spread this far North. Why? Drugs are not sold on corners around here. It's really that simple. The question is: why?

I am not naive enough to think no one on the North side uses drugs. Last Sunday I saw a very strung out young woman nodding off near a park where little kids were playing. I asked her if she was ok. "I am just really tired" I was told. Heroin tends to make you tired.

But I doubt that we have as many regular drug users up around me. You have to earn money to live up here. In other words, one has to have a job. A healthy heroin addiction isn't conducive to corporate survival. Smoking crack-cocaine for lunch isn't a safe beat for obtaining job security.

However, I blame the gangs for the violence. Millions of dollars are made selling drugs in Chicago. The gangs control the drug trade. The gangs carry guns. Gangs settle disputes with bullets.

And the cycle just continues. As long as there is cash to be made from selling drugs, the violence will never go away.