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.



  1. Powerful post, Schantz. It's interesting that you opted for the bench trial. In the two cities I have practiced, you tend to take a jury for credibility issues (and in fact on most issues) and a judge on more legal issues. But, of course, that is generalization, and depends on a whole host of things. I'm sure it was the right call in this case. I'm sorry for you and the client that you lost.

  2. @Jamison, I think it depends. In Chicago whenever the police department's credibility is in issue, a jury is the way to go. Most judges side with the cops, but jurors are suspicious.

    In this case, I felt a judge would be a better choice since the State's witnesses were all felons and I predicted would lie while testifying. My fear was that a jury wouldn't pay attention close enough and would miss all of the impeachments. That's exactly what happened with a murder trial in April. I had a jury that didn't want to be there and showed it with a super quick verdict on a case that everyone felt should have been a not guilty. I am still in post-trial phase on that case trying to get a new trial.

    In this case, the judge took lots of notes. He questioned witnesses. And he watched them testify. I was completely stunned by his ruling. I still am. I don't get it. Had any of the State's witnesses been a defendant in his courtroom and with their backgrounds, he wouldn't have believed a word they said. I know that to be true and that's what stings.


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