Thursday, August 26, 2010

A Wise Judge

A while back I wrote about the case of a young man and how I came to be his lawyer. He was initially caught with a pistol. I didn't represent him on that matter. A PD was able to get him probation since it was his first felony.

But he was put on Gang Probation which is extremely strict. There are curfews, random drug drops, rules about not hanging out with gang members, and a complicity to having your home searched 24/7.

The day after he got out of the county after being placed on gang probation, his home was searched. It was actually less than 24 hours later. A box of ammunition was found in his father's closet. The young man said he meant to get rid of the bullets but had forgotten they were there.

He was immediately arrested and charged with being a felon in possession of ammunition and for violating his probation. Really, he had 2 new cases. This is where I entered the picture.

Whenever someone on felony probation is arrested for a new felony, they are held with no bond. This young man, now my client, was arrested on April 28, 2010. I first appeared in court for him on May 26, 2010. I immediately requested bond be set since it was such a minor case.

And if you read my earlier post, the judge did set a very low, reasonable bond. The father, however, was not able to bail his son out though he had cash in hand. Our county jail messes up records all the time. I made some calls, but got no where.

On the next court date in June, I told the judge about my client's bond woes. And over the State's objection he was released from jail on an I-bond (Individual bond), which required no money. That night, the client went home. This is extremely rare in felony cases and almost never heard of when the defendant has allegedly violated felony probation by picking up a new felony.

The State also elected to prosecute the probation violation rather than the new case. They typically do this since the burden of proof is preponderance of the evidence as opposed to guilt beyond a reasonable doubt.

In theory, if found guilty of violating probation, that person could be sentenced to prison for a time based on the offense for which they are on probation for. In this case, it was 1-3 years downstate.

A VOP hearing was set for yesterday. After reading the police reports again, I felt it wise to just stipulate to those reports. I could see no reason that I needed to question any State witnesses. The facts weren't horrible.

The prosecutors love to stipulate. It's less work for them. The case was called. We told the judge our plan. He asked for opening statements. The State waived. I quickly reminded the judge the facts of the case.

A stipulation was entered that mirrored my opening statement. The State rested. I rested. The State argued. I argued. The basis of my argument was that my client forgot the ammunition was in his house. I argued that it's not as if he went out and committed a new act which violated his probation. He simply forgot they were there.

The judge found him guilty of the probation violation but ruled the State had only satisfied a burden of preponderance of the evidence and not guilt beyond a reasonable doubt. I will explain why he did this in a bit.

For violating the probation, the client was sentenced to 7 days in the county jail, time considered served (he actually was in for 49 days before the judge I-bonded him). And the judge ordered probation to continue. Though found guilty of the VOP, this was a win for the defendant. Time considered served is always a win, to an extent.

The State could have proceeded on the new case if they wanted to send him to prison. But the judge, in finding the State only proved a violation on a lower standard of proof, cut off that route. Thus, the second case was dismissed.

As of yesterday, the client has no more pending criminal matters in court. I could tell he was happy to have all of the behind him since there was a chance he would go to prison.

Despite the meager $100 retainer I took on this case, the father did pay me every nickel he agreed to.


Monday, August 23, 2010

Compassion and the Criminal Defense Attorney

I am a member of the National Association of Criminal Defense Lawyers. The purpose of the organization should be obvious from the name. The NACDL puts on several seminars yearly all across the country and the topics cover all things criminal defense related.

As a paying member, I get the NACDL's monthly journal, The Champion. This month there is an article about compassion and the criminal defense attorney. The article's author says we criminal defense lawyers should generate compassion for our clients.

To me this is a no-brainer. About 10 years ago, I studied Buddhism pretty seriously. I was able to put to practice in my life some of the fundamental concepts of it. According to Buddhism, the most important virtue one can develop is compassion.

What is compassion? Here is a dictionary definition: a feeling of deep sympathy and sorrow for another who is stricken by misfortune, accompanied by a strong desire to alleviate the suffering.

According to this definition, merely recognizing someone has fallen on hard times isn't true compassion. You have to feel it too. And you have to want to help make it better.

Being a criminal defense attorney provides endless opportunities to be compassionate just by doing your job. When I started this job I think I took on too much of my client's angst. It bothered me that innocent people were in the county jail. And it really bothered me when innocent clients went to prison.

But I quickly learned that if I was too compassionate, I wouldn't be able to function. I could lose my objectivity. Not all clients are the same. Not all cases are the same. Some client's situations are more compelling than others. But if they have hired me as their lawyer, they are all asking for my help. They need me. It is my job to help them.

During my first year doing this work, I concluded that my clients and their families wanted one thing more than anything else out of me: they wanted to know I cared. In a system that's overcrowded, unfair, too fast, and unforgiving, they wanted to know the person they hired to be in court, actually cared.

I attribute any success I had initially to the fact that I did and do care. I am not sure I can point to one thing about how I handle a case that shows I care, but the message was received loud and clear.

I spent a lot of time on the phone explaining the felony criminal process to worried mothers, grandmothers, wives, fiances, girlfriends, and sisters. I know I was hired on scores of cases simply because I took the time to listen to and answer their questions. I also went to the homes of most of the callers that hired me. My main motivation to do this was to get paid. That was obvious. But I was told it was impressive that I was willing to drive in and sometimes meet a very extensive family. I also always asked to see a photograph of the person I was being hired to represent.

When I went to the county jail to meet my new client, I can tell it made them feel good when I told them I was just at their house and met their grandmother, etc. Some I think were quite shocked.

This type of client servicing isn't something you can read in a book. It's instinctive. You either do it, or you don't. And in the dawn of my practice when I didn't have a lot of experience, I made up for this deficiency by out-servicing any other attorney out there. As the referrals started to come my way, I knew my work was appreciated. 

I have seen criminal lawyers who clearly don't care. It's quite obvious. You can tell just in the way he or she talks to the client and the family. The people we represent and hire us don't want to be lectured. They want to be listened to. They want to be understood. And they want you to try your hardest to get the best outcome as possible.

It's really that simple.

Is this being compassionate? I don't know. But if you're in this business and have trouble sleeping because you have a client in custody that shouldn't be there, you might be on your way.


Tuesday, August 3, 2010

The High Side of Winning

Yesterday I wrote about losing in criminal court. Today I get to write about winning. This business is very up and down, like a sine wave continuously oscillating. There was a Frank Sinatra song years ago called That's Life. Here are the opening lyrics to the song:
That's life, that's what all the people say
You're ridin' high in April, shot down in May
But I know I'm gonna change that tune
When I'm back on top, back on top in June
As you can see from the Old Blue Eyes song, his ups and downs were on a monthly cycle. Mine are day to day, which has its good and its bad.

Back in May I conducted a hearing on a motion to suppress. I wrote about it here. A brief history of the case is as follows. On a December night in 2009, a man heard a knock at a window on the side of his house. This isn't in a great neighborhood by any stretch. At home was himself and his young son.

The man, who was 62 at the time, looked out the window. He saw another man he didn't recognize. A minute later this strange man appeared in front of the home. The home owner opened the door to say something to the man.

Here was the first dispute in the case. The man outside claimed the homeowner had a pistol in his hand when he opened the inner house door. He alleged the pistol wielding man said he should shoot him for banging on his window like he had.

The homeowner said he only had a baseball bat in his hand. That bat is kept next to the door. And he asked the man outside if he was crazy because he banged on his window.

The man outside called the cops. A few minutes later some arrived. Police officers entered the home and found a handgun under the mattress in the bedroom.

Here was the 2nd major dispute. The cops claim the homeowner opened the door and consented to them coming inside. But the homeowner maintained the cops just came in and started searching.

To his credit, the judge didn't make a credibility finding. If you recall from the prior post, the judge ruled the cops didn't need a warrant to enter the home because exigent circumstances existed which negated the 4th Amendment warrant requirement. I took a huge issue with that ruling.

The judge denied my motion. This client, though currently 62, had some criminal background from almost 30 years ago. Due to Illinois law, he was charged as being an Armed Habitual Criminal. The sentencing range for this case was 6-30 years.

After the judge's ruling I spoke with the client in the holding cell. To say he was disappointed would be an understatement. He had just married his current wife less than 10 year ago. She's a very good woman. And he's a very nice man himself. Very soft spoken and very gentle.

I saw the look on his face that I had seen before. It's the look of someone about to do a lot of prison time. I don't know exactly what they are thinking. But the look is the same. His was no different.

There was really no way out of this case. Prior to the motion hearing, I asked the prosecutor to consider proceeding on a lesser charge based on his age and lack of recent convictions. They said no way.

But I felt the judge was wrong. And I told the client I wasn't done fighting unless he wanted to go back out, plead guilty, and get shipped downstate on the next bus out. He asked me what could still be done. A Motion to Reconsider, was my answer.

I explained to him what such a motion is in a way he could understand. I told him it would mean another couple months in the county jail. I said it was rare that judges reverse themselves, but that I wasn't afraid to ask. The client agreed. I went back to the courtroom and told his wife. I think by telling her I had more fight in me, it gave her hope, if only a little.

Armed with my notes from the hearing, that night I started drafting my motion to reconsider. I wrote the history of the case and the relevant testimony from all 4 witnesses. A couple of days later I did my legal research and found cases that countered the judge's ruling.

Within about a week of working on the motion sporadically, I had a first draft done. It was about 6 pages. A long time ago I learned about writing for trial judges: Keep it short. On point. Use cases correctly. No high rhetoric. But argue your case.

And that's exactly what I did. I was happy with the final draft. If I wasn't already convinced I was on the right side of the 4th Amendment, I sure as hell was after reading my motion. It was spot on, or so I thought.

On the next court date, instead of asking for a 402 conference so a plea deal could be discussed, I filed my motion to reconsider. Not dead yet Madam Prosecutor and His Honor. The case was continued again so the State could read my motion and prepare to argue against it.

I let the client's wife read my motion before I filed it. She's not an attorney but said she understood every word of it. Right there that meant to me that I had written it correctly. If a layperson can read and understand it, surely a judge will be able to as well. Keep it simple stupid.

On the next court date we finally argued the motion. I didn't add too much to what I had written. The highlight of my argument that assuming the complaining witness was credible, then the most my client did was hold a handgun in his own home. The witness admitted at the hearing that my client never opened his outer door and never pointed the gun at him.

At best, I told the judge there might be an aggravated assault charge, which is a misdemeanor. I also pointed out that violation of the city of Chicago handgun ban, which at the time was still in effect, is also a misdemeanor.

In summary, I argued the defendant upon hearing a loud bang at nighttime coming from a window in a bedroom on the side of his house, looked outside and saw a strange man. That same man suddenly appeared in front of the house. The defendant in reasonable fear for his safety and the safety of his young son armed himself to protect his home and family. He opened the door to warn the stranger he was armed.

Also when I was drafting my motion, I couldn't resist just a touch of fluff. Here is what I wrote:

A man holding a weapon in defense of his home is not an act of violence. It is a longstanding American tradition that a man may defend his home with arms. This tradition is followed in the law. Defense of property is allowed because of the historic recognition of the sanctity of a man’s home.  

Though owning a handgun is currently illegal in the city of Chicago, violation of this ordinance is only a misdemeanor. Therefore, the police were responding to only a very minor offense at most. The police officers both testified petitioner was never seen in possession of the recovered handgun. There was no testimony the handgun was ever possessed outside of petitioner’s home. It was never pointed at anyone. And it was never discharged. Thus, even if all of the State’s witnesses are 100% credible, the actions of petitioner cannot be reasonably described as violent.

The logical extension of this court’s ruling is that police may enter any private residence simply because someone alleges a resident owns a weapon. This is not the law. Even when a confidential informant provides information to police about the location of weapons and/or narcotics, a search warrant must be obtained.

If the protections of the 4th Amendment can be circumvented merely based on the word of anyone, then the protection against unlawful entries into one’s home is an illusion. And permitted warrantless entries into a home where a weapon was shown to simply warn a stranger, affronts the American spirit, the Constitution, and our history of jurisprudence. 
After hearing argument on my motion to reconsider the judge granted it. Then he stayed his ruling so that he could order and review a transcript from the hearing. Damn. So close. Case continued again.

Today he gave his ruling. He ruled that despite his prior ruling, the police didn't need exigent circumstances to enter the home because the defendant had let them in. I think that means I had him on the exigent circumstances issue, so he just decided the cops were let in. Clever way around my argument.

But then he said that despite defendant admitting he had a gun, there was no consent for the cops to actually search for it. [Note: I also mentioned in my motion to reconsider there was no search warrant or consent to search]. And the gun was recovered in a different room from where the client was talking to the cops, thus the search incident to arrest end-run around the warrant requirement wasn't applicable.

The judge said something about a man's home being his castle. Ha! I think he bought my fluffy ending. And then he sustained my motion to reconsider and ruled the handgun evidence was inadmissible.

He asked the State if they wanted a check date. This is yet another continuance to allow the State to appeal this ruling to the Appellate Court. It happens, but rarely. But the State always takes that extra date. I think they do it to make the defendant sit in jail another month before the case is dismissed, but I can't be sure.

I was shocked when the prosecutor said "motion State, nolle pros"

In English that means the case was dismissed. The client leaned over upon hearing all of this and asked "what's that mean?" I answered, "it means you're going home tonight." His eyes got really big.

This story had a happy ending. I got a huge hug from the wife outside the courtroom. And for about 5 minutes I felt like Superman. This was a good case to win because the client's situation was compelling.

I was afraid he might die in prison and never get to kiss his wife again. I really was. 6 years for him might as well of been a life sentence. And I can't imaging anything worse than spending my last few good years on Earth in a funky prison.

These types of cases don't come along too often. And when they do and the law is followed, they need to be celebrated. For today, the 4th Amendment was alive and well. That gives me hope. Today is what keeps me coming back.

It's funny how things work out sometimes. I wasn't hired on this case until the public defender told the client and the wife it was a loser case and 6 years was as good as it was going to get.

When the wife called me and told me about the case, I told her I couldn't guarantee anything. I explained a motion to suppress the gun was about the only shot the case had. At trial it was an easy guilty. The gun was indeed there. Those are bad facts, I explained.

She talked to her husband and decided to give me a shot. I didn't ask for a lot of money and in the end they got a lot of lawyering for what they paid.

What's a year with your wife and son instead of being locked up downstate worth? What's Thanksgiving and Christmas with your family worth? What's waking up tomorrow and going for a walk in the park worth?

Sometimes we criminal defense lawyers give our clients something than cannot be valued.



Monday, August 2, 2010

The Personal Side of Losing

I doubt anyone likes to lose. Some people detest it more than others. When I was a child, I hated losing at anything. From Monopoly to baseball, I hated losing. I don't know why. But I suspect it's because winning feels so good and losing so horrible.

My competitiveness eased as I grew up, but it's still palpable. For someone that likes to win, I might have picked the wrong career. I have to think most criminal defense attorneys that actually litigate cases in court lose more than they win. Well at least the ones around me do.

We in the defense bar celebrate wins that aren't even ours. When a fellow defense attorney does well in court, it's a nice thing to witness. It restores a basic faith in the fairness of the system that 5 minutes later is forgotten.

Gerry Spence claims to have never lost a criminal trial. I, like Norm Pattis, would love to know how many criminal trials he has tried to verdict. In my world, any lawyer that claims he never loses, is a lawyer that never steps in the ring.

I have lost my last 3 trials. 2 juries and 1 bench. I took something from each trial. I learned what I could or should have done differently. And I will still firmly state all 3 guilty verdicts were wrong. 2 of them were entirely unsupported by the evidence. And 1 was pretty close because the issue was whether or not my client knew there was a gun in his trunk.

If you read here, you might recall the 45 minute verdict I got on a murder case in April. That made me distrust Chicago juries. And two weeks ago was the bench trial where somehow the State's inconsistent, perjuring felon witnesses were found credible over my witnesses. The judge found my client guilty of 2 counts of attempt murder and 2 counts of aggravated battery with a firearm and I honestly don't know how.

The day after that verdict, I ran into my co-counsel on the April murder case. If you recall, she has a couple of decades of murder trial experience and represented the co-defendant. I told her about the previous day's verdict. She looked at me with this look that conveyed she knew what I was feeling.

I asked her something like this: "If the juries don't want to be here and screw us and we can't trust the judges, what are we doing?" I don't recall her exact answer. But it was something along the lines that asking that question too much was bad for one's career.

I am starting to figure out why so few private defense attorneys try cases or litigate motions. I am sure there's more than I think, but I still keep seeing the same ones over and over. Most of the ligating falls on the shoulders of the PD's and sadly, most of the PD's have bad cases. Or maybe we all have bad cases, and the PD's have the worst of the worst.

Maybe people give this career a shot and then leave out of frustration. I have thought more than once about retreating to misdemeanor court. No one goes to prison there. I know back when I was doing mostly misdemeanors, I slept better. And my overall day to day stress was much lower.

You can lose in misdemeanor court too. But compared to violent felonies, the loses are more gentle. Clearly the stakes are lower. But the flip side to the misdemeanor work was handling more clients, taking more phone calls, and earning significantly less per case. The busy work of signing up new clients and getting paid for misdemeanor cases was exhausting.

And honestly around here, I never felt like much of a lawyer doing the misdemeanors. More often than not, I was paid to come to court and watch the case get thrown out because the cops didn't show up. And even when the cops did show up, my client would get offered a little slap on the wrist like 60 days of court supervision. I never litigated anything in misdemeanor court because it rarely happens. I mean rarely.

I filed a motion to suppress on a misdemeanor case and the State gave me an unbelievable deal. I had a misdemeanor case set for trial but the complaining witness was a no show, thus the case was dismissed.

But back to losing in felony court. Why do I hate losing so much? The answer isn't simple. On cases where I really feel I am on the right side of the law, losing forces me to accept the system isn't perfect. Representing an innocent person that's going to prison hurts in ways I can't describe.

I feel my clients trust me. In the serious cases, by the time the case gets to trial, I know the client well. I know the family. I know the girlfriends. I know the buddies. I am part of the family. Everyone is counting on me to set things right. When it goes poorly, I feel like I let everyone down. The only thing the client and family knows is the outcome. Everything else is court and lawyer stuff. The stuff I am supposed to know. The stuff I am supposed to be able to work for our side. What do they think of me after a loss? 

Losing also causes me to doubt my abilities as an attorney. I always ask if the outcome would have been the same with a more seasoned litigator. Losing sucks because it's taking the place of a winning celebration, however small. Winning just feels better. My life is a better place to be when I win. It really is.

I need to figure out a way to savor the wins more and brood on the loses less. There has to be a way to balance this all out. If not, I will slowly be consumed by the failure virus.

A couple of weeks ago, I tweeted that my job is much like gambling in Las Vegas. I win just enough to keep playing, but overall I lose more than win.

Since I began serious felony litigation under a year ago, I have had some successes. Right before Christmas I returned a young man to his 4 children after he spent 5 months in the county jail. And in April, a client charged with murder, was freed after 8 months in jail when I got his case dismissed on the day of trial.

I have spoken with both clients sporadically since they went home. I would like to think neither will ever forget me. I won't forget them. There have been other significant wins too, but those two cases are the ones I celebrate privately the most. Both cases remind me of why I do this job. And both cases remind me of how great it feels to hand deliver justice to someone dearly in need of it.

Much like that one great golf shot in an otherwise horrible round, the few great wins do keep me coming back. I am slowly learning to deal with the loses. Every time I hear "motion denied" or "guilty" my skin grows a little thicker. My time to pout grows shorter. And I suspect my resolve stiffens a little more. I will never like losing. Nor will I accept it. 

But it appears for the time being, I have to learn to live with it. I will figure out a way to make something good from it too. Character is measured not by how we get knocked down, but in how quickly we dust ourselves off and go back at it.

You either do, or do not. There is no in-between.