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.




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