Tuesday, July 27, 2010

The Road To Boston

When I was a kid, I was like a fart in a skillet. I never sat still. I probably had undiagnosed ADHD or simply consumed too much sugar. It would be a lie to write that I completely grew out of it.

Around the time I was in middle school, I realized that I was an above average distance runner. Regularly in gym class, we had to run around two giant fields. I have no idea how long of a run it was, but I always raced it and always came in first or second.

For some reason that's still unknown to me this day, I didn't run cross country or track. I grew up around a very fit father. I can't think of too many days from my childhood that my dad didn't work out. He lifted weights every day. He had washboard abs and was built like Rocky.

In high school he tore his knee so normally his cardio was limited to a rowing machine at home. We didn't have a garage so our house was pretty much my father's gym. My dad never ate junk food and he drank a lot of milk. Consequently as a child, I didn't eat junk food and also drank a lot of milk.

My dad eventually started running during my middle school years. We lived in a rough area of town, so he would drive to a nice park for running. Over the summer between my 7th and 8th grade years, I went with him. I have no idea how fast either of us ran, but I could never keep up with him.

In those days, I didn't even have a watch or proper running shoes. I just ran. And I don't know why.

Because I was a normal boy of my generation, I was a skinny kid. In the summer I was forbidden to be inside during the day except for the hour or so I spent doing household chores, like washing dishes.

Being outside all day, all summer, I played a lot of baseball, rode my bike, climbed trees, traded baseball cards, and cut grass here and there. But I never sat around and did nothing. I was constantly moving, like an electron.

I went through high school and again didn't run cross or track. Overall I was less active, but still skinny. I spent most of my high school years chasing girls and playing my guitar.

I joined the Army the summer after my junior year. It was that summer that I started running again. Because I took so many classes my first 3 years of high school, I got to graduate in January my senior year. A week later I was in boot camp.

But that last summer, I ran almost every night before I went home. I don't remember how far I ran. I never timed it, either. I ran so I wouldn't be out of shape when I got to Ft. Benning, GA in January.

In the Army I was a pretty decent runner. For the 2 mile run I used to come in at around 13 minutes. That time put me in the top percentile but still a couple of minutes behind the fastest guys.

It wasn't until I was stationed in Hawaii that I did any real distance running, however. In the barracks room next to mine lived a Mexican guy from East Los Angeles. He was older than myself. He loved 2 things. Jack Daniels and running. In that order.

Most nights during the week he would go out and run a 9 mile out and back course that went up a small mountain at the back of Schofield Barracks. I remember thinking he was insane. Run 3 miles in the morning. Then run another 9 at night? Stupid.

One day the challenge was laid down. He said I couldn't make it up there and back. A couple of nights later, I ran with him. And I almost died. But I made it. When I got back to the barracks I collapsed on my bunk, lit a Marlboro light, and asked my body for forgiveness.

The word quickly got around that I had made the running journey to Kole Kole Pass and returned alive. Some people started looking at my differently. I admit I felt some pride. And that's probably when I was hooked. Right there. Right then.

I started running with Gonzo almost every night. Then I started running with the fast group at PT runs.  Our company runs were split into 3 speed groups: fast, normal, and geriatric. The second two groups resembled a normal military formation run. Side by side running and yelling cadence.

The fast group was an entirely different story. It was generally less than 10 men. There was no formation. There was no cadence. It was hit the road, run as fast as possible, and try to hold on.

The first time I ran with the fast group, I doubt I made it more than half a mile. I don't think anyone had an idea of the pace, but I guess well under 6 minute miles. Well under. Within a few months, however, I was able to go the entire 3 miles at ludicrous speed.

My first real road race came in 1991 when I, along with a few others from the fast group, ran the Oahu perimeter relay. I was an E-3 or E-4 at the time, but on my team were a couple of officers and some senior NCO's. I admit it felt awesome to be part of that team.

I don't remember where we placed or how fast we ran. I know we did well. I still have the medal from that race and the memories of not being able to walk for 2 days solid. If memory serves me correct, it was an 8 person team over a 130 mile course. I think each runner ran 4-5 legs ranging in length from 3 to 6 miles.

Imagine if you will, racing a 5k full out, crawling into a Chevy Suburban for a few hours and then getting out and doing it again. Then repeat a couple of times. That is a recipe for having angry legs. Mine were no exception. Here is a picture after we finished. I am all the way to the right and that's Gonzo to my right. I only count 7 in the picture but I thought we had at least one more runner. I was 19.

And that race would be my last race until 1996. I got out of the Army in early 1992. Like so many ex-soldiers, I got fat. Really fat. I stopped working out completely. I was still smoking. My diet was crap. My body was a glaring reflection of that lifestyle.

On February 1, 1996 I stopped smoking. And I ran for the first time in 4 years. I was able to do 2 miles at a decent pace without dying. I also cleaned up my diet. By March I had decided to do the Chicago Marathon that fall. And by April I had already lost almost 35 pounds and was doing 15 mile long runs.

In August I signed up for and ran my first 5k in 17:45. I was 50lbs lighter but still knew absolutely nothing about racing or how to train to run fast. I bought 1 book to prepare for the marathon, but I did no speed work. No mile repeats. No tempo runs. Nada. I just ran.

I was probably averaging a little over 50 miles per week. Some days I ran faster. Some days I ran slower. I took a day off here and there, but still ate almost no crap food.

That October I ran my first marathon at age 25. Because of how I am, just completing the race wasn't going to be enough. I had to have a time goal. So, I thought it would be cool to qualify for the Boston Marathon, though I couldn't have afforded to go do that race.

With one fairly recent 5k under my belt, I headed up to Chicago for the big race. It was a great day until around mile 18 when someone threw a piano on my back. From there on my pace got slower and slower. My legs heavier and heavier. My nipples left red trails of blood down my white singlet. The pain was excruciating. I wanted to stop.

I finished in 3:10:XX. Crap. My qualifying Boston time was 3:10. Almost. Until about a month ago, I thought I missed qualifying for Boston by less than 1 minute in my first marathon. But I found out that if 3:10 is the qualifying time, anything under 3:11 gets in. WHAT? I did make it? HOLY SH*T!

From 1996-1998 I worked at a running store and did tons of road races, mostly because they were free and I am a t-shirt kind of guy. 

In 1997 I found triathlon. In 1999 I did the Ironman Florida. Again just doing the race wasn't enough for Mr. Mental Case here. I wanted sub 12 hours. I made it with 15 minutes to spare.

Then I was done racing. I was sort of burnt out. But I didn't stop running, per se. I just had no purpose, or so it seemed.

During my first semester of law school, I woke up early every morning. I ran about 30 minutes. Then I went to a field and did push-ups and sit-ups. That lasted until first semester finals, when all hell broke loose.

For the next year and a half, I was the victim of a series of medical problems that damn near killed me, both in body and spirit. Most of law school is a blur due to heavy use of narcotics. How I made it through is a mystery. But I know I came out the other end a changed person forever.

During my illness I had stopped working out. I simply couldn't. I spent most of my time in agonizing pain and then stoned for days. I fell into a downward spiral that took me to the darkest places of human existence.

When the illness finally gave up trying to kill me, it took a solid year for me to feel like myself. I was left a drug addict. The week I spent on my mother's couch kicking the drugs was beyond anything that can be conveyed from one person to another. I wouldn't wish that utter hell on anyone. I never prayed so hard I would die and quickly at that.

Once again, I was seriously overweight. But I eventually got my butt into the gym. And within 18 months I was back to my old self, only now reborn and better.

I am not built like a distance runner. Not even close. I have the upper body of a light weight boxer and the legs of a tailback or soccer player. They grew during my Army time. It seems carrying a massive rucksack with a radio strapped to it up and down gulches in the jungle causes leg growth. When I began cycling, they grew even more.

I spent most of 2007 lifting heavy weights with my upper body in an attempt to balance me out. Through a very dedicated system of diet, cardio, and weight training, I added about 25 lbs upstairs. I didn't like it. My face looked ballooned. And I felt like I was carrying some other dude's body.

Before I had bulked up, I lost all of my sick weight. In November and December of 2007, I ran off all of the extra muscle I spent months gaining. By January 2008, I looked like myself when in shape.

Somewhere around early February something got me interested in racing again. I was running almost 100% indoors on a treadmill at my gym. In March I ran my first race in 9 years. It was a 5k. I ran it in 18:50. Eh. I think I took 3rd in my age group so I was happy. A couple of weeks later I ran another 5k in very cold, windy conditions. I was a little slower but still took home an age group medal.

I could tell I was getting in really good shape. I have always wanted to go run the Boston Marathon just because. The qualifying time for my age is 3:15. Bah. That's not fast enough for el stupido. I declared no Boston for me unless I go sub 3 hours, officially.

I signed up for the Rockford Marathon scheduled for mid May 2008. In early April I went down to Springfield to run the Lincoln Memorial Half Marathon. This was to be my first real distance race since 1999. I had no idea what to expect. I didn't know what my fitness was like over a long distance.

I ran it in 1:21 finishing in 10th place overall. Based on that time, a sub 3 hour marathon should have been a slam dunk. Here is a picture of me running through a cemetery on the race course.

The next week I was recruited to run with a team doing the River to River relay in Southern, IL.

River to River is an 8 man, 80 mile race from the Mississippi to the Ohio River. The course is crazy hilly and 100% rural. As it turns out, I was the only person on my team that didn't run in college. The man who had won the St. Louis marathon the same day of my race in Springfield was on my team. He's stupid fast.

For this race, each runner ran 3 legs. I will let you do the math. But it reminded me again of the Oahu relay back in 1991. The big difference was there was less time between legs because we were so damn fast. 

We took 2nd place out of a couple hundred teams. I was happy that I wasn't the slowest person on that team. The next week I ran about 70 miles, finishing with a 22 mile long run that Sunday.

On Monday morning when I woke up I knew I was in trouble. I couldn't have ran 10 feet. Fast forward through injections in both knees, months of no running, MRI's, failed physical therapy, and at the end of July, I had right knee surgery. As you can see from the picture below, it wasn't anything drastic. I just needed some cartilage shaved down.

Though I was supposed to wait 6 weeks before running, I waited 2. I was registered for the Chicago Marathon just 8 weeks away. But I had given up on doing it. There was no way I was going to be able to get ready. Or so I thought.

Even though I wasn't able to run for 3 months, I kept working out in the gym. I did lots of elliptical work to maintain my aerobic base. I think it was probably my second week of running again that I felt maybe I could still do Chicago.

I went into the 2008 Chicago Marathon having no clue what my racing fitness level was. I knew what it was back in April, but standing there one morning in October 2008, I had no idea.

I know people that pace themselves during races. They have time goals. They know what their mile splits need to be to meet that goal, etc. I have never raced this way once. I just show up and run the thing as fast as I can.

I read a book last summer about how the brain knows how fast you can run over a distance. I believe this to be 100% true in my case. At any given race, my brain and body know what my max pace is for that race on that day. It just happens. And I go with it.

My time for the 2008 Chicago Marathon was 3:04:XX. I finished in the top 2%. I was well under 3 hour pace until about mile 21 where my training deficiencies caught up with me. I simply hadn't put in the miles. But I walked off the course that morning knowing that I had nothing left. I had given that race all I had in the tank. Here is a picture from that marathon.

The next month, November 2008, I went to Nashville to run the Harpeth Hills Flying Monkey Marathon. I was again injured from doing too much before Chicago the month before. This was a really cool race, however. Actually it was a social weekend and we just happened to run a marathon on Sunday morning.

The Flying Monkey race is in Percy Warner park and has to be one of the hilliest marathons in the country. I don't recall one portion of it that was flat. At that time of the year, the park is in full fall colors and it's really a beautiful course. Here I am on the left as you're looking at the picture. Neither of us 3 were racing the course that day. Instead we all ran together and told jokes. Runners are weird.

I know the weirdo that created the Monkey race and administers it every year. He usually only lets 200 runners in and the post race party was more like a pot-luck with beer. The best post-race food anywhere. The best race medal ever (it's made of wood). See below:

After Monkey 2008, I took off most of the month of December to heal up. I did run a couple of days after Christmas on a treadmill at the Monte Carlo Hotel/Casino in Las Vegas. 

Fast forward to spring 2009. Once again I am getting into pretty good shape with an eye on the Chicago Marathon that fall. But much like 2008, I trained unwisely. I added too many miles too soon. And again, I would be forced to sit down for 90 days while my body healed.

I never had an official medical diagnosis for my problem in 2009, but I suspect it was bilateral tibial stress fractures. A big difference between 2009 and 2008 was that in '09 my 90 days of no running, were the 90 days immediately before the marathon. Shit.

I did go out last October on a very cold morning for the marathon. I decided two days beforehand that I was actually going to do it on zero training. I ran it that day with a very special person and it turned out to be my favorite race of all time. Never before had I noticed what a spectacle this race is. I never saw the faces or heard the cheers before.

By taking my head out of super competition mode, I was able to open up and really experience the race. It was cold as hell, but I really enjoyed it. The rib dinner that night was the icing on the cake. Here is a 2009 Chicago Marathon picture. I was too cheap to pay for them since it wasn't a glorious race.

In the quest to get to Boston on my terms, 2008 & 2009 were failures. It took 2 major injuries to teach me that I am no longer in my late 20's. 2 years in a row I trained incorrectly.

As soon as I start to feel my body getting into shape, I just want to pour more on. More miles. Tempo runs. 400's. Going from 40 miles to 60 miles a week in 7 days isn't smart. And I know I knew better. But feeling good is addictive. And if running is making me feel that way, than surely more running will make it even better. Wrong.

Much like December 2008, the last month of 2009 saw me running very little. I entered 2010 with a new approach. This year I wasn't going to race. I didn't care. I would rather run all year slowly than a couple of months here and there fast. I realized that I just love to run, at any speed. I wanted 2010 to be injury free.

I spent early January running slowly on a treadmill. I had no real speed. Then I got roped into doing a stupid half marathon in late January. It was a very small grass roots race called: The Fu*king Freezing Frozen Half Marathon. The course was unmarked. There was no water on the course. No volunteers. The race went along the lake and partly on ice.

Unofficially, I won the race. I wrote unofficially because there was no race clock and it was on the honor system. I was the first person back to the start, thus the winner. I hadn't planned on racing it. Less than 50 or so people started the race. I ran up to the front where there was a small group of about 8 men running.

I tried to say hello and make some small talk. None of them were nice. I was an outsider. They must have been some sort of little club or something. So, I grabbed a gear and left them all well behind me. I was so disgusted after the race that I went immediately home.

Next came the Lakefront 10 miler. Then the Magellan Half Marathon. And in June the MC200, a relay race from Madison, WI back to Chicago. Awesome race. Here is a picture of my team gathered at the finish line. I ran the last leg from Evanston to Montrose Harbor, thus I am wearing no shirt.

During the MC200, I ran 3 legs. My second leg started around 4:30 am somewhere in Wisconsin. Though it had been extremely hot the day before, by the time my 2nd leg was starting I was cold. In fact, I was shivering.

The weather was very spooky. It was foggy with tons of moisture in the air. And I could barely see 5ft in front of me. I waited at the transition area for my teammate. For safety, we had to run with lighted vest and a light strapped to the head. It was odd feeling and looking.

As it turned out, my teammate ran the last part of his leg with a runner from a different team. They both came through the transition area, made the exchange, and we were off. I wasn't planning on running with the guy from the other team, but he told me to come on. So I went.

I have no idea who he was, but we flew. Though I was wearing a Garmin that displays pace, I was afraid to look at it. My body told me I was clipping. I wish I could recreate that morning as I ran through it.

There I am with a light strapped to my forehead running 6:15 miles in the middle of no where through a dense fog. And talking to a total stranger every step of the way. He and I were racing in a way. I don't think either of us could have dropped the other. He would pick it up for 200 meters or so and then I would do it. It was strange because neither one of us said anything about the pace, but I think we were thinking the same thing.

When we finished that leg 5 miles later, we shook hands and thanked each other for pushing us beyond where we thought we could go. Looking back on that early morning just a month later, it seems as if it was a dream. A very surreal dream. I had no business running that fast based on fitness level.

Though I did these races, I wasn't really training hard. No speed work. Just running when I could. I joined the Chicago Area Runner's Association (CARA) and volunteered to lead a weekly long run pace group.

CARA has a marathon training program that builds towards the Chicago marathon. I figured it would be fun to help some others train towards their race goal since I wasn't planning any fall marathons. 2010 was supposed to be an easy year for me.

Last year at this time I was injured. Same in 2008. It's almost August and my legs feel great. Over the last month my easy pace has gotten faster on its own with no speed work. I have been running in the middle of the afternoon when it's hottest. This might sound stupid, but I have my reasons.

I like to run because it's the only time of the day I am truly alone. No people. No pets. And no phone. It's my time. I feel free when I run. I am also a sun lover. I suffer winter depression due to a lack of it.

Apparently, I also like to sweat. A lot. This might sound gross, but I simply love running along the lake in the hot sun wearing almost no clothing (shorts and shoes, of course) and watching the sweat bead up on my skin. It tells me I am working.

And when I finish that 60 or 75 minute run, hose myself off, and sit outside until the sweating stops, I am rewarded by a tremendous feeling of contentment. And it's addictive. Really addictive.

Running is my stress reliever. I know some people like a stiff drink after a rough day. I prefer an hour run. A good run can balance out a terrible morning and keep me mentally healthy.

I wish I had words to describe what it feels like to be in really good form, go out on a run, and just fly. When you're in outstanding shape, every now and then you experience a run that's just short of magic. Or it might be magic. 

The stride is light and not forced. It seems as if the feet are barely touching the ground. Breathing is steady but relaxed. And the really weird part is that it seems as if it's just happening on its own. Or to put it another way, like your body is off for a run on auto-pilot and your senses and consciousness are along for the ride but doing none of the work.

I would have never predicted but running has become the glue that holds the adult version of myself together. There are other ways to keep me in shape. I am no stranger to cycling, swimming, and various other cardio machines. But minute for minute, running pays off the best. For me.

I have decided to register for a fall marathon after all. Why not? With my current fitness level, 10-12 more weeks of training should bring a sub 3 hour race if I am smart about it, meaning I don't get injured.

My fastest marathon has not been run yet. I have yet to get to the starting line 100% prepared, in peak form and ready for that race. My first marathon back in 1996 was about as close to meeting that criteria as I have experienced. But I hadn't worked on being a fast runner.

And I will never be fast. Well, Kenyan or Ethiopian fast. Compared to elite runners, I am as slow as a glacier. Here is an example. My 2008 Chicago Marathon time was 3:04:43. That's an average per mile pace of 7:03. By way of comparison, in Berlin the month before, 35 year old Haile Gebreselassie destroyed his own world marathon record of 2:04:26 by running a 2:03:59. That's an average per mile pace of 4:44. I can't run even one mile at that speed.

He did 26.2 of them and finished like this...(notice the guy on wheels behind him)

Runners run for different reasons. Some are fast. Some slow. Some run lots of miles. Some not as much. Some race. Some don't. Some are old. Some are young.

But all runners, run.

Thursday, July 22, 2010

When The Incredible Is Credible

In April I felt betrayed by a jury that didn't want to be in court. If you recall before the trial was over 2 had gotten off the jury and another person tried to be excused. In that case there was no physical evidence. Instead there was testimony from felons that conflicted with other witnesses' testimonies.

At the end of the trial, I felt the State had proven my client might have done the crime. After all, he was there, but so were plenty of others that went unaccounted for. And I argued strenuously that might have is not guilt beyond a reasonable doubt.

After that case, I felt betrayed by that jury. They took 45 minutes to decide my client's guilt. They wanted to go home and so on a gorgeous April afternoon, they went home after throwing my client's life away with little or no thought.

I was really shook up after that. I had tried a good case. And I felt I had won, but I just had the wrong jury.

Fast forward to this week's trial. My client was adamant about wanting a jury trial since day 1. I told him what happened in April shortly after that verdict. I told him I was scared of getting another jury that didn't want to be there.

If the jury system has one serious flaw, it's that it's taken for granted jurors will do their jobs. My experience tells me otherwise. This trial was somewhat similar: no physical evidence tying my client to the crime. The State's case was made up entirely of testimony from lawless felons who had changed their stories during the investigation numerous times on numerous key points.

From a read of all of the witness statements along with a trip to the crime scene, it was clear to me they were lying. It couldn't have happened as described in police reports. From the first moment I met this client, he maintained he was innocent. After visiting the crime scene and talking to locals, I believed him.

This client was so sure of his innocence, he was proceeding to jury trial pro se until the point I stepped in. They police had the wrong man. He had spent months reviewing the police documents in jail. And to his credit he found every single inconsistency in the witnesses' statements. Though I doubt his ability to handle his case pro se, I admit he knew exactly where to attack the State's case. 

His case was continued repeatedly, but trial finally started Wednesday July 21, 2010. By this time I had convinced him that I trusted a judge over a jury in a credibility contest. During motion hearings or bench trials, the judges take copious notes and even ask questions of the witnesses. Jurors probably day dream.

He finally agreed and so we started the trial. I spent all of the first day impeaching the State's civilian witnesses. Then when the detectives testified, I perfected every single impeachment. The testimony of all three witnesses was entirely inconsistent and not one corroborated any other. But, all three witnesses testified my client was the shooter. Where he was when he shot and where the victims were when shot depended on who was telling the story.

After the close of the State's case Wednesday evening, court adjourned. I spent all of Wednesday night and early Thursday morning drafting a closing where I addressed every lie and inconsistency heard in court on Wednesday. I did this without the benefit of a transcript. I ended up with 2 entire pages of single spaced descriptions of untruths from all 3 witnesses.

I pointed out where their stories didn't match. I noted where their trial testimony was inconsistent to statements given to detectives. There was a ton of this material. I had clear examples where all 3 witnesses had lied in court on Wednesday.

Added on top of the lies, I added the criminal backgrounds of the 3 witnesses. One of them was a career criminal. On cross-examination he admitted he couldn't remember how many times he had been to prison or how many felony convictions he had. I think I got out at least 12 and moved on. At one point he gave me the cross-examination dream answer, "if you say so." I love that.

One of the victims had two felony convictions, though he's only 19. And the other witness denied twice having any current cases, but admitted when I asked him if he's currently on house arrest for a pending felony drug case. He also had 2 prior felony drug convictions.

I called a mother and son who were neighbors with my client. They both testified my client was down the street in front of their house when the shooting happened. Neither witness was impeached or shown to have any bias. The mother, who is a 61 year old disabled diabetic, was not shook on cross. And her son also stood up well.

Finally I called my client. He testified he was down the street talking to the son when the shooting happened. The mother had just came home before the shooting. She was walking up her stairs when she heard the shots. She opened a hallway window. She looked outside to see my client still standing there with her son. The shooting took place more than 200 ft down the block. She told them both to come inside.

All 3 of the State's witnesses testified my client was indeed down the street with the son prior to the shooting, so it wasn't like I created that location and anchored my client there. The State's witnesses testified they came to where my client was and had words with him. But then the witnesses left and went somewhere else depending on which version of the story was being told. But ultimately the 2 victims ended up walking down the street and were eventually shot.

The State argued that my client later left from the yard he was hanging out in, went somewhere, grabbed a gun, changed clothes, and then popped out from a gangway down the street and shot the victims. Of course, my witnesses and my client testified he never went anywhere and was where he had always been when the shooting happened.

When I gave my closing argument, I went through the extensive list of lies and inconsistencies of the State's witnesses. I pointed out that they had all lied to detectives and then took an oath and lied during the trial. Then I said:

As the court knows, the burden on the State is to prove guilt beyond a reasonable doubt. I say they didn’t come close. They only thing that was proven beyond a reasonable doubt is that State Witness A, B, and C came into this honorable courtroom, took an oath to tell the truth, and then sat in the witness seat and lied repeatedly.

It is fundamentally important to our system of criminal justice that what was attempted in this courtroom is not allowed to happen. And that is that anyone off the streets can come into a courtroom of honor and nobility and lie in an attempt to deprive an innocent man of his liberty. I shudder to think such an outcome could happen to Mr. Client or anyone else based solely on the testimony this court heard from the State’s civilian witnesses.

In my heart, as an American and a veteran of our armed forces, and in my brain as an attorney and a member of the Illinois Bar, I cannot accept that with the evidence this court heard, the State has met its burden.

I quickly wrapped up. Then the State offered rebuttal. The judge then gave a 15 second ruling. He said the State's witnesses were credible, the defense witnesses were not credible, and the defendant was a liar. That was literally all he said.

When I heard this my heart sank and may jar hit counsel's table. My witnesses were not credible? Based on what? The defendant is a liar? Based on what? And to call the State's witnesses credible is in insult to the word. If they were credible, I want nothing to do with the credibility club.

My client's sentence will be tantamount to life. There really are no legal grounds at this point for a new trial. All of the pre-trial motions went in my favor. There was no prosecutorial misconduct. It was a very clean trial and I appreciate that the State kept it fair. So far in my trials there have been few objections. I know the rules and I play by them. The State usually does the same.

His only hope is that the Appellate court rules there was a failure of proof and outright reverses his conviction. I have hope because I have seen this happen on similar cases. Unfortunately, most reviewing courts give deference to the trial court's findings on credibility issues. But in this case, I made a lengthy record calling into question the credibility of the State's civilian witnesses. A very lengthy record.

And since my witnesses were in no way impeached, perhaps this will have a shot someday on appeal. Or perhaps he will prevail on an ineffective assistance of counsel claim and get a new trial. If making me look like a poor attorney gets this man a second trial, I am all for it. I just hope my client makes it that long.

One of the most uncomfortable feelings as a defense attorney is trying to console a client just found guilty of a crime like this. Trying to explain this verdict to the family is also not pleasant.

I told him I was sorry. I tried to offer hope. I told him the judge got it wrong. And I am looking through the holding cell bars at him knowing he's going to eventually get 52 years to life in prison, but I get to go home and sleep in my bed. That felt so wrong.

I wonder if anything I said even seemed sincere. If I were him, would I believe me? Does he believe that I cared about him? Or was I just there getting paid and couldn't care less at the outcome.

No, Mr. Client, I know you're innocent. I have known it all along. And part of me felt like it died when the judge read his decision. It has nothing to do with my ego. Sure a not guilty would have brought minimal and short-lived bragging rights, but that's not why I am in this. No, Mr. Client, I took your case because I truly believed in your innocence and wanted nothing more than to free you. That's why I am in this.

But I failed you. The system failed you. You got no justice. You got processed.



Tuesday, July 20, 2010

My Morning

This morning I had a motion to quash arrest and suppress identification set for hearing. I didn't set it for today, the judge did. Even though I told him that I have a very serious trial tomorrow, he still set his hearing for today.

I knew last week I wasn't going to be ready. I already had a motion to quash arrest and suppress evidence set for the 3rd time on Monday (yesterday). I knew that hearing was going to proceed. I went to the courtroom and told the prosecutor I wasn't going to be ready.

Late last week I called the prosecutor and left a message that I wasn't going to be ready. Yesterday morning before my motion hearing downstairs, I went to the courtroom again. And you can imagine what I did. Yes, I said I wasn't going to be ready.

This morning came. I went into chambers with the prosecutor. I told the judge I needed a continuance. He asked why. I told him about tomorrow's trial and that I didn't have time to prepare. He asked when the trial was set. I told him before his hearing set. Then he asked if I told him about the trial. I said, yes.

He said he was going to get the transcript the last time the case was up to see if I really told him. Then I reminded him that he wanted to set his hearing for Wednesday, and I told him I had a trial that day and even told him which courtroom and judge. At that point I think he knew I was telling him the truth. He gave me the continuance.

After I left court, I had to drive down to a pretty rough neighborhood. It's the type of area where every other building is boarded up and there's trash everywhere. I was there to serve subpoenas for tomorrow's trial. I couldn't find a process server that would go in this neighborhood. Last month, I spent about an hour down there one day taking pictures and talking to residents. I had no problems.

I rang the buzzer on the building. Of course the intercom doesn't work. A head popped out of an upstairs window and asked me who I was looking for. Standing there in a shirt and tie, I probably looked like a cop.

"I am looking for Witness A. I am not poe-leece, I am a lawyer." After a minute or so, I was told Witness A & B were on their way down. Score! Got them both.

A couple of minutes goes by and I hear someone coming down the stairs. Then I see a shadow but there's no light inside the building so I can't see who it is. But quickly I realized it wasn't either Witness A or B.

The person that hit the landing and unlocked the door was smoking the end of a joint, or roach if you will. It was maybe 10:00 am. "Whatcha smokin' on?" I asked. The person just smiled and french inhaled the next hit.

Then he spoke. "He ain't shoot them boys." But he didn't say "he". He used my client's name. I told him I know he didn't. I gave him a one sentence synopsis of my case and he understood and agreed. "People around here are saying he's going to get life."

I explained it was my job to prevent that from happening.

On one hand this was a strange encounter. It's early in the morning. I am standing on the stoop of a run down building in no-man's land talking with someone that's already high and getting higher by the puff. And this guy knows exactly what happened, but wasn't there to see it. Or so he says.

But on the other hand it seemed completely normal and nothing about the situation made me feel creepy, uneasy, or paranoid (I didn't inhale, obviously).

"He's gonna beat this case" was the last thing my new friend said to me.



Monday, July 19, 2010

The Dangers of Blogging

A couple of weeks ago I did something I rarely do. I Googled my name. And I was amazed to find some of the strange corners of the internet where it appeared. More often than not, the name was attached to a blog posting of mine.

I use Google analytics, or at least it keeps an eye on my blog traffic. There isn't much. But I really thank those that do read it. I can look on a world map and see where my small collection of readers live. Not surprisingly, most live here in the Chicago area. But I have a couple readers as far away as Japan and Australia. For them, domo arigato and well, thanks mate.

I didn't start this blog for any articulable reason. It wasn't to educate. It wasn't to persuade. It sure as hell wasn't for marketing reasons either. I write here to vent mostly about problems I regularly encounter in the local criminal justice system. Other than a single Twitter tweet whenever I publish a new post, I don't advertise this blog in any way. It may be blog rolled or linked in a few places, but that's about it.

Over the last 7 or 8 months, I have slowly opened up more of myself in my writings. I have written about fears and insecurities I have. I have shared the best of my days and the absolute worst of them. Writing about bad days can be cathartic. And for some reason there's never enough people around with which to celebrate wins.

But I am not usually such an open person, especially with strangers. I am very guarded and am slow to let people get close to me. I have trust issues when it comes to other human beings. I typically put more trust in animals, like my dog for instance.

I ask myself why I have written so much about personal feelings here on the internet, an electronic universe with no boundaries. There is little privacy on-line these days. And because of that it's impossible to know who is reading what I write.

Could something I write ever be used against me? Absolutely, and therein lies the danger of blogging.

Have you have ever paid attention to senate confirmation hearings of nominated Supreme Court justices? I find it strange that the nominees are sometimes put in the hot seat over things they wrote as law students. Do we really need to reach back that far? Apparently some think so.

This blogging stuff is still pretty new. But well within the next 10 years, people's blogs are going to haunt them. Just based on my own blog content alone, I will never be appointed to or elected...well...pretty much anything.

Whenever I hit the Publish Post button at the bottom of this text box, I have created a digital fingerprint that will never go away. I own it. I will always own it. The fingerprint could be open to interpretation, but in my case, I doubt it. I want someone reading here to know exactly what I am trying to convey. This is why I write in short sentences with no flowery language.

I never had political aspirations. And I don't want judicial power. If I was afraid that in 10 years something I wrote last December would be used against me, I wouldn't have published it for anyone to read.

How sad would I be to have something I wrote in the past thrown in my face? I guess that depends. I would never want to work for anything or anyone that would go through such measures in the hiring process to begin with.

But if one day when I am in my mid 50's, I feel like running for city council of some Rocky Mountain town, I could be in trouble. I have written strong opinions about firearms and could be classified as a social liberal.

Some blog and just recycle news gathered elsewhere. But some of us write about issues close to us. And some of us even take sides, call a spade a spade, and offer opinions. The reason is that we can. I have no editor. I have no boss. It's my blog. If you don't like it, don't read it. It's quite simple.

I do try to be fair in the telling of my stories (that's really all I do, tell stories). I try not to write in absolutes. I base my opinions on my own observations and not conjecture. And I think I am pretty fair. I am certainly not extreme.

But some could incorrectly conclude I am a criminal loving, gun hating, freer of murderers and rapists. That is all wrong. But if certain paragraphs from a posting were cut and pasted along with paragraphs from other postings, small-minded people might find argument in support of such a wacky assertion.

 A danger of blogging is that you're posting potential future ammunition. Words written and published today could be spun around, attached to other words, and used as a sword against their very creator, you.

Why have I opened up? Perhaps because I can't sense or feel rejection. I don't know how many people read what I write here. I feel like I have nothing to lose. If I write something that upsets someone to the point they no longer read me, I won't ever know it. And if everyone stops reading, I will be back to where I started. But the reasons for this blog will still be very much intact, thus I would lose nothing.
Again, I don't care. I am who I am. It's all here, out in the open. No excuses. No apologies.



Sunday, July 18, 2010

Cop Killers

This morning an off duty, uniformed police officer was shot and killed outside his home on the city's south side. It might have been a car jacking gone wrong. The officer was over 60 years of age and near retirement. His most recent assignment was to guard Mayor Daley's home.

I admit I regularly read the Chicago Breaking News stories on the Tribune's website. And when something terrible happens, I pay close attention to the reader comments. Most people appear to be completely frustrated by the violence in Chicago. I know I am.

Just 2 weeks ago, another Chicago police officer was shot and killed with his own sidearm. And this May, a younger off-duty police officer was shot and killed. The assailants were trying to steal his motorcycle.

None of these recent killings involved officers who were on duty, thus like so many other people murdered senselessly, they were in the wrong place at the wrong time. The fact that they were sworn police officers has naturally sensationalized all three killings.

I will never argue that one life is worth more or less than another. But when police officers are killed, no matter the circumstances, people get upset. I read daily about gang members shot and killed. I won't say that no one cares. That wouldn't be true. But the comments on those stories are typically aimed at Mayor Daley. They read like this "I love how your handgun ban is working Daley. Way to go. Aren't we truly safer now. Thanks."

When an officer is killed, commentators typically offer prayers to the family. But then the Mayor gets beat up and ultimately blamed for pretty much everything. Some people seem to think that if everyone was allowed to carry a concealed weapon, the violence would somehow go away.

I don't really understand that line of thinking. But I am open to anyone who feels that way to comment here. Having everyone armed just reminds me of the Wild West and the open frontier. Now take that picture and put it inside the inner Chicago city where population density is a problem and I see a recipe for disaster. I could be wrong, however.

Last week there was a gang related shooting in Lakeview, my neighborhood. Also in Lakeview in the last couple of weeks were 2 home invasions. One victim was a retired University of Illinois professor. The other victim was a young woman who was choked by her assailant.

There has also been a couple of shootings recently in Uptown, which is just north of Lakeview. And even Evanston, home of Northwestern University, has seen a couple of shootings and at least one murder this summer. It doesn't get more white bread than Evanston, except maybe Wilmette. But I digress.

The temperatures have been abnormally warm lately. Cops tell me occurrences of violent crime rise with the mercury on the thermometer. I believe this to be true. It seems there's more shootings and murders during really hot weekends. And last night, as usual, most of the gun firing took place between 1 and 3 am.

But not all violence happens when it's dark outside. In fact, all 3 police officers were killed in broad daylight. And last week a 16 year old boy was murdered on his bike early one morning. Then that afternoon, another 16 year old was shot. The gang shooting in Lakeview last week happened in the early afternoon. A man was shot and killed in his car early this morning on the west side.

The big difference is that the cops tend to catch daytime offenders easier. As far as the officer that was murdered this morning, reports claim 3 young men were involved. I am sure it won't be long before 1 of them is caught. And 1 of them will certainly give up the other 2.

The streets talk. And people in custody talk. These guys will be caught. I am confident. It wouldn't surprise me if they were all in custody right now, though there's no report of this. When a cop gets killed, the shooter is caught very quickly. When a cop gets killed, other cops take it personally. I certainly can't blame them. It's a tough job.

Even though none of the officers were on duty, at least one was in uniform. There's an unwritten rule about killing cops: you don't. Period. Killing an on-duty cop can bring the death penalty. I doubt if the bad guys this morning asked the officer if he was still on the clock before ending his life.

It is truly a lawless state out there if uniformed police officers can be killed in front of their home, on duty or not. Perhaps the officer was wearing a coat and maybe the bad guys didn't recognize that he was a cop. I wasn't there, so I don't know.

I think most of me wants to believe that this couldn't have happened. A man in his early 60's and wearing a police uniform was murdered in broad daylight, in front of his house by people that wanted his car.

If that's exactly what happened, I may lose all hope. I may lose hope in this city. I may lose hope in people. I may lose hope in my profession. I may lose hope in everything.

I am pissed.



Wednesday, July 14, 2010

Surrounded by Liars

On Monday I conducted a hearing on a motion to quash arrest and suppress evidence. My motion was denied. Since the client had no background, I was able to negotiate a pretty good plea deal for a special type of drug probation. If he completes the 24 months of probation satisfactorily, the charge is dismissed. He can then also have the arrest expunged.

The police alleged that my client ran a red light while turning from a side street onto a busy boulevard. He was pulled over. When the officers approached the car, they noticed loose marijuana in his lap. He couldn't produce a driver's license or insurance card. They ordered him out of the car and noticed that he was sitting on a bag that contained over 100 grams.

That was the police version of the case.

At the hearing, I called both officers as witnesses. Sadly, they stuck to the story. There was only minor deviation between their testimonies. But they both testified to what I wrote above.

Then I called my client to testify. He testified that he noticed the cops behind him several blocks before he was pulled over. He stated he was never on the side street as alleged. He denied running a red light. He further testified he was never asked for his license or proof of insurance. At the time his license was in his wallet which was in the coat on the passenger's seat. And his insurance card was in the glove box.

Instead, he said, the police walked up, ordered him out of his car, and began searching it. There was marijuana in his car hidden under the gear shift.

The prosecutor attempted to trick him on cross-examination, but he didn't waver. Why? He was telling the truth.

I rested. The State rested. I stood up to argue.

I told the judge that since Arizona v. Gant was decided, the police suddenly started seeing contraband in plain view during traffic stops. I said it wasn't a coincidence. I said that I didn't like calling sworn officers liars, but argued their testimony wasn't credible. I asked the judge which was the more likely scenario:

1. The defendant, while sitting on a big bag of weed with some even scattered on his lap, ran a red light on a busy street when there was no evidence he had been smoking since no paraphernalia was recovered. Or,

2. The defendant was pulled over because the cops wanted to search his car and they found marijuana hidden under the gear shift?

The judge found the testimony of the police credible. I wasn't too surprised but it deflated me. This scenario happens too often for my liking. Often as a defense attorney, we know a witness is lying but can't show it. It's very frustrating.

Many, if not most, of the judges show too much deference to the police in my opinion. And it really burns my hide to sit and watch a sworn police officer perjure himself without a thought. The fact that I can't show that they're lying makes my blood boil.

The perjury isn't limited to small weed cases like this one. It gets more foul when they lie at hearings in murder cases where the client faces the rest of his adult life in prison. The liars just don't care. And why should they? They are not discouraged nor punished for doing it.

I stand as an officer of the court and won't tell the smallest lie to anyone in the courtroom about anything. I never even claim I have a trial somewhere else just to get out of a scheduled hearing. But sworn police officers regularly come into court and take a second oath that, in practice, is meaningless.

I am not bashing all of the police officers here in Chicago.

Just the liars.



Monday, July 12, 2010

False Confessions

The Chicago Tribune recently published a story on its website about false confessions. I am not sure if it made it to print, but I wouldn't doubt it. It's not hard to see what prompted the story.

Last week it was reported that DNA evidence will likely exonerate a man who had confessed to killing his 8 year old daughter and her 9 year old friend. As it turns out, DNA recovered from the crime scene matches a different man who happens to be in custody in a different state.

And not too recently, a man who had confessed to killing his 3 year old daughter was freed after DNA excluded him as the killer. Riley Fox's father allegedly confessed to not only killing his daughter, but to sexually assaulting her as well.

Kevin Fox, the father, spent 8 months in jail before DNA evidence freed him. A Will County jury later awarded him $15.5 million dollars in a civil suit against the Will County Sheriff's detectives. That award was reduced to $9 million on appeal.

Both of these stories happened here in the Chicago area, thus the recent story in our local media.

Why would someone confess to something horrible that they didn't do? And in these two cases, the act was murdering one's own child. That's about as horrible as it gets. So why? Why do it?

The answer is simple: they have been pushed beyond their breaking point. And this is done on purpose.

Everyone remembers the allegations of torture being used on detainees in the war on terror. Tony Lagouranis wrote a book called Fear Up Harsh. I read it. Tony was a U.S. Army Arabic translator. He worked in Iraq, including Abu Gharib, among other locations. The stories told in his book are on the frightening side.

Besides the human rights issue that discourage torture, there is one other major reason not to use torture in interrogations: it puts into question the accuracy of what the tortured said.

If you were to pull out my fingernails slowly with a pair of pliers, I would tell you anything you want to know. In fact, I would make stuff up if I thought it would make you stop.

That last sentence is why I believe innocent people confess. They want the interrogation to stop. I think it's that simple. There are probably other factors at play, but ultimately, I think people get worn down and can no longer resist repeated suggestiveness.

I am not implying that local police use water-boarding or other quasi-physical torture techniques. But a simple lack of sleep coupled with hunger and extreme mental bombardment obviously breaks some people. In truth, we all have a breaking point. It's part of being human.

Police interrogators are trained to find psychological vulnerabilities and apply pressure. It's not hard to find such areas on people in custody suspected of heinous acts. Add in the fact that, as in the 2 cases around here, the person's child was recently murdered and you have a balloon about to pop.

It is now the law in Illinois that all murder interrogations must be video recorded. That law was not in effect when the two fathers here in the Chicago area, confessed to murdering their children. However, at least one of their confessions was videoed.

The great thing about the video is that the cops know Big Brother is watching. And they know the video is going to be turned over to the defense attorney and possibly played at trial. With the video machine running, any and all monkey business will be captured, thus detectives tend to follow the rules.

I have seen interrogations stopped as soon as the suspect asks for a lawyer. I feel good about this, but sad that it took video surveillance to guarantee that it would happen.

But just because the cops can't beat a confession out of someone, doesn't mean they can't still wear them down. Police interrogations follow the Reid Technique. And it's quite effective.

The article on the Tribune's website described the methods of the Reid Technique as follows:

...interrogations are "well-thought-through psychological manipulations to get a confession."

Police do that by first developing a rapport with suspects. They then give them their Miranda rights, though in such a way that suspects feel they are being uncooperative if they invoke them. Finally, he said, police confront a suspect, saying they know he committed the crime but offering a way out that acknowledges guilt but to something less heinous.

I found this description to be dead-on accurate. Back in April, I was able to get a murder case dismissed. Naturally, I wrote about it because of how rare it happens. But in that case the interrogation was almost identical to what the Tribune described.

That case involved a murder that followed a failed car-jacking. The interrogating detective, as they all do, claimed he was the suspect's friend. He was there to help him. I haven't watched the video in months. But the detective said things like this:

I don't think you're a bad guy.

I don't think you planned for this to happen.

I don't think you planned for him (victim) to end up dead.

I think you just wanted his car.

Then the detective went a step further. He knew the suspect has a young son. He created a scenario that went something like this: if your son stole a bag of chips from a store how would you feel if he lied to you by denying it, when there was proof he had really stolen the chips? Wouldn't you want him to tell you the truth?

Of course the suspect indicated he would want his son to tell him the truth. Then the detective waited to see if he would take the bait. But he didn't.

The suspect, who later became my client, never broke. He maintained from the start he didn't know anything about the murder. But the detective wouldn't give up.

We know you did it. We have proof you did it. Other people know you did it. You know you did it. Stop this bullshit and just admit it.

In the end, it didn't work. Several hours later, the suspect eventually asked for a lawyer. The interrogation stopped. He was charged on next to no evidence. And what evidence they had was fabricated by the police, thus the later dismissal. A civil case may or may not come from the entire ordeal.

Last fall I was at a 2 day seminar downstate. It was dedicated to death penalty cases. One of the topics was false confessions. Currently, there are 2 very well known researchers that have done work on the subject, Dr. Richard Leo and Dr. Richard Ofshe.

Dr. Leo spoke on this matter at the seminar I attended. Dr. Leo described the phenomena of false confessions, his research, and case studies. He asked that we all recognize that they do happen and quite frequently.

According to the Tribune article, up to 25% of wrongful convictions involved false confessions. That's a very significant number and cannot, nor should not, be ignored.

Reid & Associates, creators and purveyors of the Reid Technique of interrogation, now recognize false confessions exist. They have created a chapter in their manual dedicated to this topic. However, and not surprisingly, they marginalize it's occurrence, claiming only minuscule rates.  

As an attorney, a confession is very difficult to deal with. Motions to suppress post-arrest statements are granted less than 1% of the time. If judges don't understand false confessions, asking a jury to buy it is a tough sell.

We were all advised to retain an expert on the subject, like Dr. Leo or Dr. Ofshe. That's sound advice if the money to hire them is available. A great number of the Illinois death penalty cases are litigated by public defenders. And Illinois makes money available for expert witnesses to those defended for free. This is good.

But what about in non death penalty cases? Most Illinois murder cases do not involve a possible death sentence. If the defendant confessed, most likely he's done. There are simply too many cases to sort out legitimate from false confessions.

Where detectives fail (and sometimes prosecutors too) is from lack of objectivity. They bend facts and evidence around their theory of the case. It's supposed to be the other way around. Once they make up their mind what happened and who did it, evidence to the contrary is ignored.

If they think the person waiting in the interrogation room is the bad guy, then he is the bad guy. And all questioning will be centered around that conclusion. Should there be any sort of an investigation, it will also revolve that conclusion.

Largely, I think the cops usually get the right person. But I have been part of too many cases that resulted in charges that followed sloppy and incomplete police work. If I can go stand at the crime scene and clearly determine the version of events the cops bought couldn't have happened, they can to. But more importantly, they already should have.

The Chicago criminal justice system operates with a fast-food mentality: It's cheap. It's quick. But it ain't always right. We defense attorneys are like the patron that checks the bag for accuracy before we pull away. But most don't. Most are in a hurry, thus the drive-in meal choice. And as Joe Pesci once said in a movie "they fu*k you in the drive through!"


False confessions exist. There is substantial proof. Instead of the criminal justice system looking at a confession as compelling proof of guilt, perhaps it should be viewed with suspicion.

The average felony suspect is not intellectually sophisticated. The interrogating officers are trained and skilled in their art. It's really not fair. I don't think most suspects really understand what's going on.

I have personally sat through an interrogation. I am educated. I can smell bullshit a mile away. But the client sitting next to me was not and could not. The detectives dangled an imaginary carrot in front of the client.

Just tell us (what we want to hear) and you will get to go home.
Why is that imaginary? Because the suspect isn't going home if he gives the detectives what they want. No, he's buying himself a case. I have told many, many people that if they are taken into custody never tell the cops anything, no matter what. Ask for a lawyer and shut up. If the cops have enough evidence to pass felony review, they already had it when you were picked up. Don't help them out and give them more.

But so many young men fall for tricks and traps. The coercion is mind blowing. And it's effect spine chilling. Imagine you're 18 and picked up by the cops. You're scared. You're put into a small room with no windows and no furniture. You're handcuffed to the wall. You're alone.

After several hours of being alone, you're confronted with an allegation of which you're innocent. You haven't slept. You're hungry. You want to go home. You deny the allegation. You're accused of lying. You're told there's proof of your guilt. You're told there's video. You're told there's eyewitnesses.

And then you're told that you're being linked to several other crimes. Lastly you're told that if you ever want to see your family again, you will sign a confession. You're given some McDonald's to eat. You're allowed to go to the bathroom. You're surrounded by friends. Some papers are put in front of you. You sign them. You're thanked.

And you're screwed. Badly.

You're not going home. You're going to spend a year in the county jail and perhaps several more in prison. Life, as you knew it, is officially over.

The above scenario never happens if a lawyer is requested. It never does. In truth, the cops don't go call you a lawyer. I rarely get calls to go to a police station, except for the pro bono work I do for First Defense Legal Aid. And even those calls are not coming from the cops. It's family of those just arrested that seek FDLA help. 

Why are so many people unable to say 4 magical words: I want a lawyer.



Friday, July 9, 2010

Thinking About Life

Last night I was lying on my bed. My eyes got lost watching the ceiling fan. From no where came the realization that one day this will all be over. Yes, some day I am going to die.

I am not a morbid person. I rarely think about death. But I do things that might delay the inevitable. I eat reasonably well. I am in very good physical shape. I don't indulge myself in risky behavior. And I tend to avoid situations where early death lurks, like cliff diving or swimming with large, hungry sharks.

Am I behaving in ways to delay death? Or am I doing things to make life today, better? A little of both?

All of my grandparents are dead. One grandmother was killed by a drunk driver when she was 50, thus why I don't handle DUI cases. My other grandmother just died recently after being slowly consumed by Alzheimer's. One of my grandfathers died over 25 years ago during an operation to remove a lung destroyed by emphysema. And my last grandfather also just died a few years ago quietly in his home after playing 18 holes of golf. Of all 4 grandparents, I want to go like the last one. His death came so suddenly, his eyes were open when his last breath left him.

I was also fortunate enough to have a wonderful great-grandmother until my mid 20's. She was a great woman and is largely responsible for where I am today. She was in her 90's when she died of old age. Her mother, my great-great-grandmother, was also alive well into my teen year and reached 100+. Sadly, however, I never met her.

Next year I turn 40. I am not fixated much on it. I still feel very good and can outrun men in their 20's. My hair does have a little gray in it and I have some light crow's feet around my eyes. Law school really put some age on me.

I am not one to be hung up on aging. Sure, I want to look young. Who at 40 doesn't? The only time I wanted to look older was when I was younger. I can't see myself ever coloring my hair to hide unwanted coloring. Having plastic surgery on my face is out of the question too.

In a lot of ways, I think my body is still getting better and better every year. I still believe I haven't ran my fastest marathon yet. And these last couple of years have seen me at my leanest body fat wise.

In other words, I still think I am a long way from the gradual slide down. I haven't peaked yet.

But I have to face facts. The average life expectancy for a white man in American is still mid 70's. In fact, only about 10% ever see age 90. In my mind, I have put the number 80 on the board. My last grandfather made it to 83.

With age 80 as a working scheduled check-out age, that means very shortly I will be half way there. Half way through life. Really? Wow. How incredibly short life is. I just got here.

When I pass, what will be left of me? Sure there will be some people who claim to have known me. I am not sure how much family will be around, but I am sure there will be at least a few. Friends? Don't have many.

Let's face it, life is largely a personal journey that's experienced at times in short bursts around others. It really is. But it's from those short bursts of joint experience that bonds are formed. It's not hard to understand the bond among soldiers who experienced combat together.

But for most of life's challenges, we fly through the clouds in a windowless airplane, solo. At least I have. I can't imagine it any other way. Sure I have gone places and seen things with others. However, for almost all of the events that have shaped and molded me into the person I am today, I was alone.

Even if I wrote about, photographed, or videoed events in my life, attempts to capture the true experiences themselves would fail. No one can know what it was like the first time I really heard Dark Side of The Moon. Or how it felt to complete my first marathon. Or get a not guilty at trial. Can I really describe in a meaningful what I like about pizza? No. Can you describe the color blue to someone that's been blind since birth? No.

The reason is that it's impossible to replicate the billions of chemical and electrical reactions that happened inside me. It can't be done. Thus, life is truly a personal experience.

And so I ask again, when I die, what will be left of me? How about this: not much. Maybe that's how it's supposed to be. If I were to create a family tree, I would have to admit I don't know anything about who or where I am from. Anything beyond the grandparents I knew is a total mystery.

On my desk is a very old pocket watch my great-grandfather, Louis L. Schantz, owned. How do I know this? His name is on the back of it. I figure it's almost 100 years old and it still works if I wind it up. His son, Lou E. Schantz, was my grandfather who golfed before he died. I knew Lou E. Schantz. I knew him quite well. But I never met Louis L. Schantz. But my dad did. He told me he always dressed like an English gentlemen, though he was German.

So the only thing I know about Louis L. Schantz is that he wore 3 piece wool suits and probably carried a pocket watch in his vest on a chain. That's it. I have no idea what he did for a living. I don't know where he was born, how he died, or how many brothers and sisters he had. And even if I did, would it matter? How would knowing anything about my great grandfather make my life any better today?

If he had been a wealthy land owner or President of the United States, I am sure I would know more about him. But I wouldn't know the real him. And if a couple of great grand children survive me, they won't know me either. Perhaps they will hear stories of me. Maybe they will read things I have written. And possibly they will see pictures of me.

But they will never know me. But do we really ever know anyone else? Some people don't even know themselves. Don't people you thought you knew well surprise you? It happens.

Don't think I am taking a mid-life dip into the existentialism pool. Because the truth is that, spiritually, I never got out of the deep end. I am not a religious person. I think humans created the concept of eternal life because accepting that once we die it's over, was too much to swallow.

As a species, humans tend to think we're something special. And because we are so special, there must be something different about how our life ends. Someone got the bright idea that perhaps it doesn't. But I think it does. I really do.

99.9% of all animal species that have populated Earth are extinct. Think about that for a minute. Earth formed about 4.6 billions years ago. Modern humans have been around for about 120,000 years. This means that humans have been on Earth for far less than 1% of its history. If the history of Earth spanned an entire calendar year, humans showed up late on New Years Eve. Our existence here on mother Earth is of limited significance.

Humans are not destroying the planet as some claim. That is incorrect. What we are slowly destroying is our ability to live here. But being typically human and arrogant, we think Earth is being slowly destroyed by our actions. Wrong. Nothing we can do is going to make this massive rock spontaneous disintegrate as if hit by the Death Star as Alderaan was in Star Wars.

One day we will be replaced. It's the order of things. And that order is controlled by a power beyond comprehension. Physicists and other really smart people can use mathematics to calculate the size of the universe a millionth of a second after the big bang. But no one can tell you from where all of the mass and energy came. For the religious, enter a supreme being.

I used to think about stuff like this a lot. It caused headaches. Eventually I realized I had no answers and chose to leave it that way. If the history of humans on this planet is of minor significance cosmically speaking, then the 80 years I might be lucky enough to spend here isn't even a drop in the bucket. Rather, my life would be more like a single hydrogen atom from one water molecule in millions that make up a single drop.

If I am of such mortal making, then why do anything? If death is coming no matter what and it's lights out when it does, why should I care about anything? Why was I raised with morals? Why am I not a mass murderer? Why did I go to school as an adult for almost a decade? Why did I join the Army? Why am I generally nice? Why do I pay bills? Why do I bathe? Why do I brush my teeth?

Easy. To make what little time I am actually here as nice as possible. Buddhists believe that almost 100% of human suffering is caused by our own actions. I think that's a spot on observation. You suffer when you want things you can't have. Ever really wanted something so bad it hurt? You get the point.

Were you ever so attached to anyone or anything so much that being separated from them or it completely wrecked you? Are you in love with material possessions?

Most of my actions are done to make life more harmonious. I like peace and tranquility. I value them. I don't have many material things. When I die, I imagine I will own more books than anything else. To date, I have given away more books than are currently boxed up downstairs.

You can't take stuff with you when it's check out time. Having a life whose happiness revolves around such things doesn't make much sense to me. Having a life that's dependent on others for happiness also seems odd.

Given all of this, I am not ready to dispose of all possessions, shave my head, and go meditate the rest of my life. I do like nice things. I enjoy little comforts here and there. I like to travel. And I enjoy a good steak every now and then.

But I don't want more than I need. There was a line in Forrest Gump that went something like this: "Momma always said a man only needs so much fortune. The rest is just for show."

For me, the real currency in life is not wealth, but experience. You have to get off your ass to experience anything worth experiencing.

And when I am done here and it's all over, those experiences go with me. That's what I get to take with me. That which I truly earned. That which became me.


Thursday, July 8, 2010

The Uncooperative Witness

On Tuesday I saw something in court for the first time. An 18 year old young man was in custody and brought before the judge. What was his crime? Murder? Gun? Drugs? Robbery? Burglary?

Nope. He didn't show up for court to testify.

There was a recent murder trial. Apparently, the alleged murderer confessed his crime to the young man in custody. I assume police found out about the conversation and took his statement. The State subpoenaed him to testify at trial and he didn't show. I assume the State asked for a bench warrant since technically he was in contempt of court. It appears a warrant was issued, thus his presence in custody.

The defendant was convicted without the additional testimony. Sometime after the trial, this missing witness was picked up. On Tuesday he was finally brought before the court of which he was in contempt. He had been in custody for 35 days.

According to the judge, he could have held this young man in custody indefinitely. The judge heard about the young man from the public defender. Then the judge lectured him before finally releasing him. But, he was warned the next time he didn't show up when subpoenaed, he would be locked up longer than 35 days.

As he was walking out of the courtroom I thought to myself that what he did was probably pretty smart. This might shock you. Ignore a subpoena? How could that be smart?

Simple. It might have saved his life. There is an unwritten rule in Chicago streets that you don't go to court to testify. Period. Not for the State. Not for the defense. Stay out of other people's business. You might live longer.

Folks, this is real deal stuff and I am confronted with it regularly. I have an attempt murder case set for trial in 2 weeks. I have 2 witnesses that credibly put my client down the street from where the shooting happened. And neither of them want to come to court. The case was set for trial last month and only 1 of the witnesses came to court. I had to hide her in a different courtroom so she would feel safe.

If I have to drag people to court to testify in my case in chief by having them arrested, how comfortable am I going to feel about calling them as a witness? The answer is not very. They are going to be upset I had them arrested. This makes their testimony unpredictable, which makes calling them as witness a dice roll at best.

I want a cooperative witness or none at all.

I imagine this phenomena has to be frustrating for the State too. My murder trial in April is a perfect example. 2 of the State's witnesses changed their story before the trial began somewhat in the favor of the defense. The State only called 1 of them but impeached her with her grand jury testimony. It's never a good thing to have to impeach your own witness.

But to the State's credit, they tied up the impeachment in closing. They told the jury that her grand jury testimony was accurate. The State argued she changed her testimony at trial because of the unwritten rule about testifying in court. I countered by offering that at some point the witness lied under oath, thus the jury should discard all of it and find her not credible.

In Chicago just being in the wrong place at the wrong time can get you killed. Some feel it's better not to give anyone a reason to kill you, thus the courtroom avoidance.

I would be lying if I claimed not to understand this thinking. It's rough out there.



Wednesday, July 7, 2010

Probable Cause v. Probable Cause

P.C. is a phrase we criminal lawyers throw around all the time. And depending on where and how it's being used, it can have different meanings. But I wish the use of probable cause at preliminary hearings would stop. It's confusing and misleading.

Preliminary hearings are typically very short in duration with normally one witness testifying. Typically the arresting police officer testifies about the nature of the arrest. Cross examination is very limited and most defendants lose this hearing.

The purpose of a preliminary hearing is for the judge to determine if there is enough evidence in the case to allow the state to formally charge the defendant. The preliminary hearing judge is not concerned about the validity of the arrest and/or search. Without the basic constitutional protections, we in the defense bar are extremely outgunned at a preliminary hearing.

The burden on the state to get a case through preliminary is extremely low. And at the end of testimony the judge says one of 2 things: "finding of probable cause" or "finding of no probable cause."

But probable cause to what?

A lot of people understand the police must have probable cause to arrest and/or search. The mechanics of the law may not be understood, however. But most know the cops can't just walk up and start searching anyone standing on a sidewalk. They need "probable cause" to do so.

And when the preliminary hearing judge finds probable cause, too many people assume the judge was basically saying the cops had probable cause to do whatever they did. Wrong. Wrong. Wrong.

The defense attorney can later file a variety of pre-trial motions and attempt to get the case thrown out without risking a guilty verdict at trial. The 2 motions I use most are a motion to quash arrest and to suppress evidence. In most cases, those two requests are part of a single motion.

Many times the basis for both of these motions is no probable cause. And if there was no probable cause, the actions of the police were unlawful. As a defense attorney, if there is any challenge to the arrest and/or search, this is where it's litigated.

Factual issues are for trial: did the defendant do it? Legal issues are for motions: did the police officer have probable cause to stop and then search the defendant? In a lot of cases, the defendant is clearly guilty because they were found in possession of something illegal. For them, the only way to get out from under the case is a motion challenging the actions of the police. It is in this way that some guilty people "get off".

You might think that if the person is guilty, so what? And if you do think that way, you're thinking like a lot of cops. Many police take shortcuts around constitutional rights on the streets just to make a case. For them, the ends justify the means. We criminal defense attorneys (and some higher courts) are the only folks standing guard in protection of personal rights.

In some respects, motion hearings are sometimes do-overs of the preliminary. However, they are much longer and the officer has to answer all of my questions (within reason). But motion hearings are backwards compared to trials.

Since it's a defense motion, we get to go first. We call witnesses. The State cross-examines them. We rest. And then the State can call witnesses. I get to cross them. The State rests. I argue. The State argues. I rebut. The judge rules.

Most defense attorneys call the arresting officer(s) as witnesses. But now we are on direct and can't ask leading questions. This feels very backwards in practice since we are used to taking cops on cross. And watching the State cross-examine its own police is strange because it's about as gentle as being stroked with a silk handkerchief.

But sometimes, I just call the defendant and rest. If my client can prove up my motion through his testimony alone, I put him on and rest. The State will then have to call their officers to rebut the allegations set forth in the defendant's testimony. This puts me back in my comfort zone of cross-examining police officers.

Sometimes, however, we file motions to get hearings that are quasi-depositions. Serious cases, like murders, are rarely disposed of by motion. I don't think the judges want to throw murder cases out. It's too political.

But by filing a pre-trial motion and conducting a hearing on that motion, I am going to get police officers testifying under oath about the case. I am going to hear things in advance of trial that are not in police records and reports. And I would always call the cops as my witnesses.

In these types of hearings, I want to ask very general, open-ended questions, sit back, and let the cop talk. The more they talk the better. If the testimony changes later, I have impeachment material. If it stays the same, then I have heard it before.

Ultimately these motion hearings are essentially discovery depositions, which are not allowed in criminal cases. What I get out of these hearings is a preview of the State's case at trial.

I don't know if I read somewhere to do these or if I just thought of it. I don't think I invented it, but I am the only one I have seen use it. I filed 2 of these motions in a recent case (a murder). I challenged the arrest and the show-up identification. I had my hearing. I was able to impeach the arresting officer with his own report. As expected, the judge denied both motions. 

However, that case was dismissed on the day of trial. I think part of the reason it was dismissed was based on testimony that came out during the motion hearing. Why? It conflicted greatly with the version of the events the one eyewitness gave to my investigator a month later. That interview was recorded, burned to CD, and given to the prosecutor a month before trial. Also, the 3 police officers that testified at the hearing were not consistent with each other or the police records.

Again, this is a motion with merit that I doubt will be granted. However, I get cops on the record testifying under oath about the case. Any time you can get this to happen before trial is a very good thing in my opinion.

In summary, probable cause is usually the issue in dispute in pre-trial motions to quash arrest and suppress evidence (at least in mine). And since probable cause to stop, probable cause to arrest, and probable cause to search all have entirely different meanings based on the situation, it can be confusing. Add in probable cause from preliminary hearings and it's a bigger mess for the defendant and the family.



Friday, July 2, 2010

iPhone + iPad = iWork

A lot of people make snarky comments about Apple products. I can certainly see why. The hysteria that accompanies a new Apple release is nothing short of silly. The iPhone 4 was recently released. I read stories of people that slept outside of Apple stores to be fortunate enough to buy one.

I wasn't one of them. It's a damn phone. Really.

But just because some people seem to lose their minds when Apple offers a new toy, doesn't mean there's anything wrong with the products themselves. I made the switch to Mac last fall. I also bought my first iPhone last fall. Why? The stuff works and makes my life simpler. End of story.

I don't use Apple products for style points or because they are seen as trendy by some. I use them because, in my opinion, they are better designed and built than PC's and I prefer the iPhone to a Blackberry, of which I owned no less than 3.

I use MobilMe for my calendar, which wirelessly syncs all of my devices. When I am in court and get a continuance, I immediately enter it on my iPhone's calendar. When I get home it's already on my iMac and MacBook Pro. I love this feature.

I don't have a secretary or an assistant. My iPhone helps keep me organized.

When the iPad was released earlier this year, I held out. Why? It was a first generation Apple product, first of all. History has shown that they can have problems. But most importantly, I couldn't see a need for it. It seemed to serve no purpose in my world.

Since then I have paid loose attention to blogs about iPads. And I have watched more and more iPad apps be produced. My practice is not a typical law practice per se. But I did keep an eye on how other lawyers were using them.

Finally I bought a used one. I combed through the local Craigslist until I found one priced reasonably. I saved $100 by buying it used and it was in brand new condition. Before buying it, I already knew which apps I was going to use with it. But I have found others since.

I use the program/application Things as my task manager (my To-Do list). I have it on all of my Apple devices were it wirelessly syncs upon opening. This application, more than any other, keeps me on track. With up to 30 open cases at any one time, I need something to help manage my work output. Things does so brilliantly.

So, what am I going to use the iPad for? Simple, document viewing. On complex cases, I scan all the discovery documents along with grand jury and preliminary hearing transcripts and save them as PDF files. I keep them on my iMac's hard drive and back them up on my Time Capsule. I was already doing this before I had the iPad.

But now, I sync the files with my iPad where I can view them with the app, Goodreader, instantly on a screen that's just the right size. I also have apps that let me view and edit MS Office documents, such as Word. I doubt, however, that I will ever do much document editing on my iPad. It seems it's primary function will be that of a document viewer.

I plan to use it during my next trial. I will keep cross-examination outlines and other trial documents on it. I can keep an entire set of Illinois Pattern Jury Instructions on it as well. I also already have a bunch of case law ready to go.

I am going out of town this weekend for the holiday. But I am taking several hundred pages of discovery with me on 2 murder cases. And instead of hauling around 2 very large files, I will be carrying this little, light-weight iPad with me. And with the app iAnnotate PDF, I can make notes on the pages and drop bookmarks where needed.

You can say or think what you want, but I think it's smart.



Why I Became a Lawyer

I didn't begin my undergraduate studies until I was  25. In the years beforehand, I knew a lot of college graduates with degrees in history, sociology, and psychology (among others) that could not get good jobs. I told myself that if I ever went to college, I wouldn't settle for anything but a professional or advanced degree.

My initial aspirations were to become a heart surgeon. Something about that job appealed to me. When I finally entered community college I took lot of science classes: biology, chemistry, physics, etc.

After a year I transferred to a 4 year university and majored in microbiology. I also got hired to work in a biochemistry lab. When I first started, I was doing grunt work like dishes and preparing growth cultures. Soon, however, I was doing research under the guidance of a graduate student and then on my own.

Looking back at what I knew and what I was studying, I can say I was damn near smart. I was also constantly around brilliant people and that never hurts. I can read things I wrote 10 years ago and not understand the content or how I learned and knew it. It's very scary.

Ultimately, I turned away from medicine. The road seemed too long. 4 years of medical school. 5 years of intern/residency. 2-3 year fellowship. That is a long haul and I seriously doubted my stamina.

Somewhere in the back of my mind, I always felt law school was a possibility. I don't really know why, however. I didn't know any lawyers. There were none in my family (nor any college graduates). I was never hooked on courtroom TV dramas or movies (save for limited viewing of Perry Mason).

But I knew that lawyers needed to know how to write and speak. I felt I was ok in those departments. In hindsight, my impression was naive. But I had no way to know what a real lawyer did. And not only that, but I had no idea there were so many areas of law.

I probably based all of my ideas of what a lawyer was and did from watching Perry Mason. Yes, I am serious. While it's true that TV series is much older than myself, my grandfather used to watch it at night. Whenever I spent the night, I watched it too.

Subconsciously, I must have noted that many U.S. Presidents and Congressman were lawyers. Abraham Lincoln is my hometown hero. He was a lawyer. Must be a pretty noble gig.

I wish I could say there was some attorney I met that inspired me, but I cannot. In fact, before I went to law school, I can't think of one lawyer that I knew on a personal level.

When I entered law school, like most 1L's, I envisioned changing the world with my law degree. But I quickly learned that I had no idea what I had gotten myself into. I got my first law clerk job the summer after my 1L year. And from then on, I worked while I was in law school for a few different attorneys.

Only 1 of the 4 attorneys I clerked for did any criminal and it was mostly DUI. None of them went to court on any regular basis. If anything, working during law school exposed me to what some attorneys do. Sadly, it wasn't anything that really interested me. It looked extremely boring, in fact.

But by the time I graduated and was licensed, I wanted any attorney job I could find. I knew fellow classmates that were still unemployed over 6 months after passing the bar exam. That was scary. I jumped at the first job offer I received.

I worked as an associate for 2 firms. I jockeyed a desk and billed hours. I never went to real court, but I did get to draft appellate briefs and even argued one. I learned how to manage a file, write letters (I mean dictate them), review medical records, take depositions, and other civil type duties.

In the past I have written about how I ended up doing criminal defense, so I won't repeat the story. But if you haven't read it, let's just say it happened by complete accident.

My initial push towards being a heart surgeon was based on a desire to help people who need it badly. But if I am being honest, there is some hero factor at play too. Heart surgeons, like other doctors, are respected and looked up to. I imagine some are even admired.

Imagine being near death. A very skilled person takes you under his care. You come away in much better shape with years more to live. That's pretty cool. Are you ever going to forget your surgeon? Hell, no.

Someone in law school who obviously knew me better than I know myself, said I would wear a cape if I could. I didn't understand it then, but it makes me chuckle now. Am I a wanna-be hero?

If wanting to help people that need it and feeling awesome about it when it goes well makes me a wanna-be Marvel Comics character, then so be it. I am ok with that. But sadly, things don't always go well in this business.

I see so much human misery, suffering, fear, regret, confusion, frustration, and desperation. And that's just from the family of my clients. Each case I am hired on is an invitation into the lives of a number of people who are looking at me to, in some cases, be a savior.

That is a very heavy load. And when the outcome is good, it's an amazing feeling. The happy, teary-eyed hugs are the best. But when the outcome is bad, the feeling is terrible. The sad, teary-eyed hugs are the worst.

When something goes right, I think to myself, "yes, this is what I am supposed to be doing." But on the bad days I think, "what the hell am I doing?" This is a very up and down business. There seems to be very little middle ground. My skin grows thicker by the day. But my heart and feelings are still alive. They take a beating regularly.

Why did I become a lawyer? I honestly can't answer that question. There is no answer. It just happened. The career picked me more than I picked it. One one hand this all seems like a huge accident. But on the other, it seems that everything I experienced in life prepared me for the work.

If you really have any clue about my day to day life, that last sentence might be disturbing. I share a lot of my daily experiences here, but no where near everything. What I write may provide some insight, but it's not the same as being here, doing it. I have read a lot of books about WWII and Vietnam, but I wasn't there.

The sounds, the smells, and the scenes cannot be conveyed by words. Or at least not by mine. It's probably better this way.

Someday I may want to forget it all, much like the Claisen condensation.