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.

www.schantz-law.com

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