Lawyering for Liberty

Before I began practicing in criminal court, I was a civil attorney. Most civil attorneys fight over money. Personal injury, tax, intellectual property, probate, commercial, contract, divorce, medical malpractice, workers' compensation, etc. At the end of the day, it's about money.

One party is trying to get money and the other party is trying to prevent that from happening. Or at least attempting to minimize how much money the client has to pay the other party.

In some criminal cases, money is an issue too. This is especially true when forfeiture comes into play. But predominantly criminal cases are about liberty. In felony court, the State is usually trying to send my client to prison. I try to prevent that or minimize the amount of time. See the corollary with the preceding paragraph?

As a civil lawyer, I could never really get my heart into my job. Why? I couldn't identify with any benefit I ever provided to a client. I was in workers' compensation defense. If I handled a case well it meant the client had to shell out less money.

In other words, I worked for the benefit of a corporation's bottom line. Or an insurance company, but you get my meaning. I spent my entire work day chained to a billing clock that measured in 6 minute increments. And I had to account for all of it. Anything I did for the benefit of a client had to be accounted for and billed properly. I didn't like that.

Identifying with my criminal clients is much easier. If I have a client facing 10 years in the joint, that gets me fired up. I was in the Army. I know what it's like to lose personal liberty. Of course prison is much more extreme. But I had just enough taste of it to know how bad it is. Or at least I imagine how bad it is.

I have written in the past about how much more civil criminal court is compared to an average civil court where money is in dispute. I have seen opposing counsels on civil cases screaming at each other. In court. Like children.

I have gone running with a prosecutor. I have had drinks with a number of them. When we see each other in the court house we exchange pleasantries. There's really only 1 prosecutor in the entire Cook county that ever got nasty with me. She apologized the next time she saw me, much to her credit. She still doesn't like me though.

There's simply not enough of us lawyers in the criminal business to make enemies. Why? You never know who's going to end up a judge. Also you don't want a reputation as someone that's an a$$hole. No one does those folks any favors.

We are all expected to be professional, respectful, and courteous. I don't have a problem with that. A few do, however. The a$$holes.

When I first started handling felony cases at 26th & California, I introduced myself to a judge. I asked for advice in appearing in his court room. He told me to make sure I always get along with the State. That was sound advice.

I recently watched the first episode of the new NBC series Outlaw. Jimmy Smits plays a former Supreme Court justice who left the court to make a difference. In the episode he takes the case of a man who was horribly injured due to a design and manufacturing defect in a car.

He initially settles the case for $10 million. That took about 30 minutes. Then his conscious gets the better of him since part of the settlement agreement is that the cause of the accident could not be disclosed. In other words, the car manufacturer was trying to sweep their serious safety problem under the rug.

Jimmy's character, Cyrus Garza, then does something unbelievable. By his own actions, he gets the settlement offer retracted by intentionally leaking it to a reporter. He knew it would happen. In Illinois (and I am sure every other state), that could get an attorney disbarred. But I digress.

Of course when he tells the now dead client's daughter the settlement offer was yanked from the table, he fails to mention his obvious role. And this guy sat on the Supreme Court? Of what? Candy Land?

The case ends up going to trial. The plaintiff is awarded a huge judgment. And at the end of the episode attorney Garza looks like a crusader for all things just. Oh I forgot to mention that an associate from Garza's office goes to Detroit to get hired on by the car manufacturer. Once hired, she hacks into the CEO's email account and uncovers incriminating information.

Hmm. That doesn't pass the sniff test either. Does it?

In this one episode we see all of the lying, cheating, and stealing which fuel lawyer jokes. This is TV. And it's clearly not real or even close. For one you could never get a civil case to trial and have a jury verdict in a mere 60 minutes. Try 60 months. Maybe.

I cannot stomach television courtroom dramas because of how silly and unreal they really are. The irony is that, but for television courtroom dramas, I wouldn't have gone to law school. Being a lawyer looked cool on TV.

There's an article in this month's ABA Journal about why it's great to be a lawyer. Even before I graduated from law school, I met scores of attorneys that claimed if they had to do it all over again, they would have picked another profession. Today I hear of law students complaining because the job market is to bleak. And they're right.

Recently I have become somewhat disillusioned about my work. I've had trouble getting paid. Problem clients. Really difficult cases. Rapidly slowing new business. It's just been bad. But reading about how others view their roles as attorneys has lifted my spirit.

I am fortunate enough that in my practice, I get to help my client in a very one on one sort of way. And if his situation is bettered, it's a trickle down benefit to his family. My job is very people oriented. It's up close and personal. Of course, the flip side is obvious. When things don't go well, there's people lined up behind my client that are going to be adversely affected. To date, I have found it impossible to shield myself from, at times, feeling like I let a lot of people down. I have a mother. And I don't like to see mothers crying. It gets to me.

When the rubber meets the road, however, I am the only person in the courtroom working on my client's behalf. Innocent until proven guilty is an antiquated, idealistic notion that our criminal justice system was founded upon. In the Chicago felony courtrooms, however, it no longer has a place. Everyone thinks the defendants are guilty and that's how they're treated. Well everyone except his lawyer. Some of the time.

Every prosecutor I have ever spoken to about every case I've handled functions from the presumption my client is guilty. They refuse to think otherwise. I once had a very serious case where my client could have been death penalty eligible. I knew he was innocent like I know my own name. At his arraignment, I told the lead prosecutor the cops got the wrong guy. He nicely brushed it off. For the next 6 months, I was on a quest to prove my claim. And I did. Case dismissed on the day of trial.

On that day, it felt GREAT to be a lawyer. But I wonder if every lawyer out there would have believed in his client's case. Would they have directed the investigation as I had? Could that case have gone to trial and the defendant been convicted? Sadly, it's very possible because after all, the system assumed he was guilty. I am not Joe Super Lawyer but I believed in my case. I kept digging until that belief was justified. And justice prevailed. I just wish it happened more often.

The moral to the story is that, at times, I stand as the only obstacle between my client and a serious loss of liberty. For me, it simply doesn't get more real. Standing between my client and a loss of some money, however, just never took root.

Withstanding that, I do not dislike civil attorneys nor am I dismissing their work. I am also not claiming criminal attorneys are in any way superior to our civil brethren. There are lots of types of law and lots of types of lawyers. Different strokes for different folks. I've met many attorneys from across the board who have their heads on straight and do honor to the bar.
 
At the end of the day, however, the client's interest must come first.

www.schantz-law.com

Air Jordans to Die For

In Illinois we have three basic types of robberies (not including car hijackings). Simple, aggravated, and armed. Simple robbery, also commonly called strong arm robbery, is taking property from another by the use of force or threatening the use of force. An example would be an offender that grabs your arm and takes your purse. Simple robbery is a Class 2 felony and can carry 3-7 years in prison.

Aggravated robbery adds the element of threatening the use of force while either saying or acting as if armed with a deadly weapon. An example is sticking your finger in a victim's back pretending you have a gun, saying it's a gun, and then taking their wallet. Curiously it's also aggravated robbery to make someone ingest a controlled substance without their consent and then taking property from them. I have yet to see a case dealing with the later description. Aggravated robbery is a Class 1 felony and can carry a prison term of 4-15 years.

Both simple and aggravated robbery are probationable.

Armed robbery is committing robbery while armed with a dangerous weapon. From my reading of the law, the weapon need not be used or displayed during the crime. Simply possessing it while committing the robbery is enough to bring the crime under the armed robbery statute.

What's a dangerous weapon? That should be pretty obvious: guns, knives, swords, brass knuckles, ninja swords, chainsaws, and bludgeons. What's a bludgeon? A bludgeon is anything that one could use to hit a victim with and cause serious bodily damage. Thus, it seems arguable that one could commit armed robbery with a large flashlight. Perhaps a bowling ball too. If you could bludgeon someone to death with it, it's a bludgeon.

Armed robbery is a Class X felony. It's not eligible for probation and carries 6-30 years in prison.

In Illinois we have sentencing enhancements for armed robbery cases where a firearm was used. And these enhancements are stiff.

Merely possessing a firearm during a robbery adds 15 years to the base felony sentence. Not up to 15 years. 15 years. It's also mandatory. The judge has no choice. The statute has the language "shall be sentenced {to an additional period of 15 years]" in it. It doesn't read the defendant may be sentenced, it reads shall be sentenced.

At trial if the State proved the robbery and the gun, the defendant would get an automatic 15 years added to the Class X sentence. Thus, the range would be between 21 and 45 years; 6-30 + 15 = 21 to 45.

Discharging the firearm adds 20 years. The State now has to prove the robbery, the gun, and that the gun was fired. I just about a case down in Peoria county where the offender shot the gun at a wall to show the victim it was real. He got 26 years.

25 years are added if the offender shoots the gun and it hits anyone and causes great bodily harm or worse. It's not even the victim that need be shot. If an innocent bystander got hit, 25 more years. In this scenario, the State has to prove the robbery, the gun, that the gun was fired, that the bullet struck someone, and the bullet caused great bodily harm, permanent disfigurement, or death.

Hypothetically, one could set sentenced to 55 years in prison for armed robbery if the offender shot someone. In comparison, First-Degree Murder carries a prison sentence of 20-60 years. But much like armed robbery, the gun enhancements apply.

As you can see, committing armed robbery with a firearm is no joke. It can be punished harsher than murder.

In the last year, I have handled or am currently handling at least 15 armed robbery cases. All allegedly involving firearms. Sadly, the average age of my client is about 17-18. What baffles me is how silly the crimes are. Only 1 of my cases allegedly involved the robbery of a commercial business where one might expect to get some money. No, most of mine allegedly happen on the street and for things like Air Jordans, iPods, cell phones, and jewelry.

Is a pair of new Air Jordans worth 21 years in prison? This might make you laugh, but in 1 of my cases the victim allegedly told the offender he would have to kill him if he wanted the shoes. This fact pattern was read into the court record yesterday at my client's plea hearing. I couldn't make this stuff up. 

There isn't one material possession I own or could ever own that would be worth my life. And this kid was ready to die over a pair of Nike basketball shoes.

Welcome to my world. Pull up a chair. And have a seat.

www.schantz-law.com

Twitter

The Chicago Marathon 2010: 100% Pure Misery

As some of you know, yesterday morning, 10.10.10, I raced the Chicago Marathon. Actually raced isn't the best word. I survived the marathon. There, that's better. This wasn't my first marathon but it sure felt like it. Or maybe how a first marathon is supposed to feel. But I first ran this race back in 1996 in 3:09. That was my first marathon.

I have been attempting to break the 3 hour mark for the race. Not necessarily here in Chicago, but any marathon. However, Chicago has a very flat course and it's widely known to yield pretty fast times compared to other races.

If you have read prior posts on this topic, running a sub 3 hour marathon is my road to the Boston marathon. The last time I attempted the marathon distance in somewhat decent shape was in 2008 where I finished in 3:04 on a warm day. That year I was coming off knee surgery, and blah, blah, blah, I wasn't near 100% on race day.

2009 was a bust due to injuries so I jogged it in about 3:49 (I think). 2010 was supposed to be a "no race" year. I just wanted to be able to run steady this year without an injury that forced me to sit for a few months. After all, I just like to run.

Of course by early summer when I wasn't injured and could feel good running fitness coming on, the idea of a fall marathon popped in my head. I should have ignored it. Completely. But I late-registered for Chicago through a charity that I still need to raise money for or end up paying the balance of the donation goal myself. If you have it in your heart to donate even $10, please click here and do so. Thank you!

I ran very well in July and August, near 250 miles per month. I was getting fast. I was doing my long runs on Saturday mornings and they were easy. My weekly mileage had slowly increased up to 55. I was doing everything right. By the book.

I did a half marathon on September 12 as a tune-up race. And I wrote about how that race didn't go as well as expected. I ended up severely injured afterward, but still ran a 1:28. For the next month, almost all of my running was a joke. I took almost 2 complete weeks off and cross-trained at the gym. I also lost some extra muscle weight I didn't need.

The first week of October I was able to run again. Well, sort of. I did a few pretty decent workouts where I got my speed up. Last Sunday (October 3), I ran 12 miles. It felt ok. Going in to yesterday's race, I knew a sub 3 hour race was probably out of the question since I ran so little for the preceding month. I could feel I had lost sharpness.

Was a 3:05 possible? How about 3:10? Surely a 3:15 was almost a guarantee, right? Wrong.

Race morning started out pretty normal. I was up at 4. I drank a couple of cups of coffee. I ate a plain multi-grain bagel. I drank water. I drank some Gatorade. But not too much of anything.

The problem, however, was that my left foot and leg hurt. I developed some random plantar fasciitis back in July. If you don't know what that is, look it up. But it's a very painful condition on the bottom of the foot sort of in the arch area but reaches back to the heel.

I had never had this type of injury before. I took a day off in July when it happened. I ran shorter distances. I iced it. I stretched it. But I never let it heal. I figured out how to train with it. What I didn't know was that I was changing how I ran with my left leg to compensate for the injury, which in turn caused injury further up the leg towards the knee.

I taped my foot. I took some ibuprofen. Actually, I took a lot of ibuprofen and headed down to the race. I had the usual pre-race jitters in my stomach. I needed to have one last sit-down in a porta potty before the race. This is normal.

But the potty I went into and sat down inside of, was out of toilet paper. Oh no. Not good. I did find a plastic bag on the floor and made due with it. But you can imagine how nasty that was. As it turned out, I think that was an omen of more shit to come. Literally.

Because I ran a 3:04 in 2008, I was assigned to the first start corral, A. Almost 40,000 start this race. It can take 30 minutes for the folks in the back to reach the starting line. Being able to be up front only 30 yards back from the start is nice. Corral A is right behind the elite runners and it takes less than 20 seconds to reach the start line.

The race started. I took off. Immediately my left leg starting screaming at me. I wanted to pull right off the course and call it a day. I knew it was going to be bad if I kept going, but had no idea just how bad it would really get.

I kept going. Went through the first mile in 6:51. I felt pretty good because I was ignoring the leg. The first 9 miles were all under 7 minutes. I was on 3 hour marathon pace. I felt pretty good. I was relaxed. I wasn't breathing hard. My pace was where it needed to be.

But around mile 9, I started to slow down. I remember the exact step it happened. I ran my first mile in over 7 minutes, but only by a couple of seconds. I averaged 7:07 for the next 3 miles, then 7:26 for the 3 after that. At this point I was thinking maybe a 3:10 race might be doable.

But after I hit the half way point in about 1:33, it all went down hill from there. I got sick. For the first time in any race, I got sick. I had diarrhea. I was vomiting. My legs stopped working. And I did something in a race for the first time: I took walking breaks.

Due to the severe cramps I was experiencing, walking was the only way to keep me from shitting my shorts. A mile later I hit a porta potty. Sat down. Shot it out. Kept on running, albeit slowly. Then the vomiting started. Then more cramps. Short bought of walking. Slow running. Extreme cramps. Another bathroom break. Repeat.

I know of other runners who got sick during marathons. But it never happened to me. I never considered the possibility. I don't eat strange foods the 2 days leading up to the race. No grease. I eat mostly grains, such as wheat pasta and bagels. I really don't know what happened. Don't have a clue. 

My body was doing everything possible to convince or even force me to quit and abandon the race. But my mind wouldn't buy it. Pride apparently was stronger than physical misery. And so this is how the last 10 miles of the race went. Utter misery. I eventually slowed to 11 minute miles because I was walking here and there. The last 2 kilometers of the race was at a per minute mile pace of 13:24. Ouch.

But it wasn't just me having a bad day. I had never seen so many seeded runners walking the last half of a marathon. A lot of people had a bad day. I usually see half a dozen or so seeded runners that went out too fast walking part of the last 5-6 miles. Yesterday, the walking wounded started appearing during mile 14. And I soon joined them.

It was warm and sunny. Some that had a bad day will probably blame the heat. I am not sure if the weather conditions played a part in my failure. It's possible. But I trained this summer in extreme heat when indexes were in the low 100's. I am not sure what the temperature was during the last half of the race, but it had to have been high 70's to low 80's. That is not ideal marathon weather. I simply don't know what happened to me. I am clueless. 
 
The last 2.5 miles of the race is on Michigan avenue, headed back towards downtown from 35th street. Michigan avenue was total carnage. People were walking. People were off to the side, laid out like dead fish being treated by EMT's. It was almost surreal. Most of the time by that point in the race, my brain is a little soft due to lack of carbohydrates. But not yesterday. I never experienced any head fog. I was just sick.

I knew where I was. I knew my name. And I knew I wanted to die. I have never felt physical pain like that in my life. My legs were hurting in areas for the first time (and still are). Coming down Michigan the spectators were yelling "you're almost there, just 2 miles to go!"

That may have been true, but it was the longest 2 miles of my life. And ones I never want to experience again. I hit the turn at Roosevelt to make my way up the little hill at the end. When I reached the top, another cramp hit. So I walked the final corner to the finish line. Then I shuffled the last 100 meters and finished. Without soiling myself. That was a victory in itself.

Several people were being put into wheelchairs and taken immediately to a medical tent. I heard ambulance sirens everywhere. And soon I saw runners on gurneys being wheeled around. It wasn't pretty. But I kept walking. I got my medal. Let out a tear or two. Grabbed some Gatorade. And walked damn near a mile to grab my gear bag. Grrrr.

I had brought my headphones with me to listen to music on the train ride downtown that morning. I powered up my iPhone. Put the headphones in my ears and started playing Dark Side of the Moon. The pain started to ease ever so slightly. Then I had to walk another mile to get to the Adams/Wabash train station so I could get home.

This race proved to be the most difficult physical test of my life, including the Ironman triathlon. It was 100% pure misery. At no time was it fun. At no time did I enjoy it. I wanted to quit every step of the race.

Years from now, when I look at the race medal I won't remember it as the race where I broke 3 hours, since I didn't. I will remember it as the race where I found out about myself. And learned just who I am. I will be reminded that in the worst conditions I can imagine, I refused to quit.

Good marathons are easy. They just happen. You're ready. The conditions are right. And you do it while never feeling horrible. Sure it's 26.2 miles, but when you have a good race, they are not that bad. Yesterday was the exact opposite.

I am currently registered for the White Rock Marathon in Dallas on December 5. At mile 20 yesterday, I swore off that race. Entirely. No way I am doing it. It can go to hell.

24 hours later my legs are busted and sore like nothing I can compare it to. I am walking like an old man with polio, but I can eat and appear to be digesting properly. I am sure yesterday was just a fluke. But it was a humbling experience on many levels. The gimpy lower leg and foot weren't the reasons I had a bad race.

No, I think the Marathon Gods decided to remind me taking 26.2 miles for granted is foolish. I had lost respect for the distance. An act of arrogance I shall never repeat. The price was too great. I had no business starting the race given my condition. And my hubris cost me. Now I sit and recover. Tomorrow I will hurt less. And the day after, even less. Within a week, I will run again.

No matter what happens from here, yesterday's race on 10.10.10 will probably be my proudest race accomplishment. I never gave more of myself to accomplish one singular feat in my life. The Ironman triathlon took me just under 12 hours to finish, but was no where close to as miserable or painful. Everyone who does this sport eventually has a bad race to some degree. I sure hope yesterday was mine.

There are pieces of me littered throughout the last half of the Chicago Marathon's course. And not just me, thousands of people lost parts of themselves out there yesterday. The empty Gatorade and water cups have been swept away. Traffic is again moving along the course like any other Monday. But the memory of what happened out there is burned into me, never to be forgotten.

For to forget, would only set myself up to be reminded. Don't really want that.

Bring on Dallas.

My Love of The Work

A couple of weeks ago, I wrote about how great Public Defenders are. I argued that given all they tolerate in performing their job, they must do it for love of the work. Deep down inside, they must be driven by a desire to help people in desperate need.

Now, I turn the lens around and look at myself and other Chicago criminal defense lawyers. I don't know how other markets operate. I don't know how much a lawyer in Dallas can charge for a drug possession case. I don't know the going rate for a murder defense in San Francisco. But I know Chicago. And I know that none of us CDL's are rich or even getting close.

In fact, we Chicago CDL's practice in the armpit of the law. I am not trying to make us sound exclusive or elite. Far from it. I imagine in other areas of the country where street crime is a problem, the job for a defense attorney is quite similar.

In an economic time where a lot of attorneys I know have expanded the types of cases they accept, I have done the exact opposite. For whatever reason, I have practiced myself into a corner limiting myself to less than 10 crimes I handle. If you read here, you know what they are.

The people getting arrested for the crimes I handle do not have a lot of money, thus I can only charge so much. I quickly learned where the market is and adjusted my practice accordingly. My overhead is extremely low.

Whatever notions or mis-perceptions I had about lawyers as a child are long gone. In the game of Life, the attorney's salary is second to only the doctor's. Growing up, I assumed all lawyers were rich. But I know union workers that make much more money than I do. And they have really nice benefits, whereas I have health insurance to cover a catastrophe and not much else.

Don't get me wrong, I am not complaining. I have a roof over my head. Clothes to wear. Food to eat. And a reasonable vacation a year. Not too shabby for a kid from South 13th Street in Springfield. I honestly didn't enter the practice of law just to be rich. I knew I could make a living doing it and nothing more. That was good enough for me. I have never had the drive to be wealthy. If you've never had it, you never know it's missing.

Next year I turn 40. I have little to no retirement money. My portfolio is limited to pictures. And I own no real property. Just some books really. And some old smelly running shoes.

I see the television commercials from financial companies like Charles Schwab preaching about planning for retirement. The one with the middle age guy in the diner IM'ing about how retirement talk has gone from "When we retire" to "If we retire" really strikes me. I don't know from where my next dollar is coming. Retirement planning seems like quantum mechanics. And I am terrible at high level math.

I dream of fleeing West. The mountains are calling me. But what am I going do to when I get there? Become the town lawyer of some small, rural mountain side city? How many shooting cases will I get out there? Robberies? Burglaries? I will probably have to become a real life Atticus Finch and there's nothing wrong with that.

Anywhere but here, having such a limited practice would bring starvation. Well maybe I could survive in Atlanta. Perhaps D.C. Los Angeles. Miami. Detroit. But none of those are anywhere close to where I want to live.

I want a simple home. One story ranch. A small porch. A rocking chair. And a view that could inspire art of many forms. I want my dog. My cats. A couple of horses. Maybe even a pick-up truck.

And if I have to work until the day I die to have and keep that dream, it will be worth it.

Scrivening wills can't be that bad.

www.schantz-law.com

Twitter

A Bad Case: Felony Probation & A New Felony

I have written about how problematic it is when a client is on felony probation and picks up a new felony. It's probably the most frustrating set of circumstances I deal with regularly.

Back in June I was hired to represent someone in this exact situation. He was on probation for a Class 4 felony involving possession of cannabis. A few months into his probation, the police obtained a search warrant for his home. When the cops busted in the client told them he had a little bit of weed. He also told them where it was.

I have had clients in the past that told the cops what they had and where it was when faced with 12 officers that just blew the door off the hinges. They are cooperative so the house isn't torn to pieces during a search.

If you have never seen pictures of a house that police officers have searched, you might not understand. But assume a tornado blew through the house and threw stuff everywhere and you will be close to picturing how it looks after a search warrant has been executed. It's nasty. And disturbing.

Despite the client's cooperation, the police decided to turn his house inside out and then upside down. They naturally found the weed. There was 11 grams of it. That would normally be a misdemeanor amount, but they charged possession with intent to deliver, thus bumping it up to a Class 4 felony.

Also found were two .22 caliber bullets and in a closet in a bedroom a random rifle bullet.

Uh-oh. Houston, we have a problem.

Convicted felons in Illinois are prohibited from possessing firearms and weapons. That's pretty obvious. But ammunition is prohibited as well. These three rounds of ammunition brought an Unlawful Use of a Weapon or Ammunition by a Felon count. It's a Class 3 felony, subject to 2-5 years in prison.

The client denied knowing about the ammunition. And based on where it was found, I believe him. And he's not the only adult male in his home. On top of that, no weapons were found and the client has no weapon cases in his background. In fact, the cannabis case he was on probation for was his first felony. He's in his mid 30's, so clearly not a career criminal or some gang banger.

Did he violate his probation? Yes. He told the cops the weed was his. Not much I can do with this case regarding the probation violation. The only shot this case had was if the search warrant was bad. It wasn't. Search warrant cases are very hard to beat. There's an assumption they are valid since a judge approved the warrant. A special hearing to challenge a search warrant has to be requested. They are called Frank's hearings. And again, the defendant has to request and be granted one. They are not like normal suppression hearings.

I have filed one Frank's motion. The State was given a continuance to file a written response in objection to my motion. The prosecutor also wanted to argue her response but didn't show up to do so when it was filed. I withdrew my motion, demanded trial, and got a not guilty. But I digress. Totally.

Back to this case...on the last court date I had a 402 conference with the judge and the State. In a 402 conference, the judge is told about the case in the light most favorable to the State. The defendant's background is also discussed and I can offer mitigation but not really argue about the facts of the case.

I wanted the same deal I got for my last VOP client. I wanted to either plead guilty or have a finding of guilty on the VOP in exchange for a sentence of time considered served. The client has been in the county jail since mid May. I also wanted probation to continue and for the new case to go away. Had I gotten this deal, the client would have walked out of the county jail and right back on probation.

Given the lack of seriousness of either case, this seemed sensible. 3-4 months in the county jail isn't a picnic.

The judge didn't see it my way. He offered to PTU and give him the minimum of 2 years on the new case. PTU means, Probation Terminated Unsatisfactorily. And that's right, 2 years in prison for three rounds of ammunition.

I wasn't happy.

The client asked about trying to beat the new case. Then I had to explain the State elected to prosecute the VOP since the burden of proof is merely preponderance of the evidence. And here's where it got really messy and confusing.

For VOP's the defendant gets a hearing at a much lower standard of proof. New cases, obviously, bring trial rights and the beyond a reasonable doubt standard. It's pretty easy to see why the VOP is normally the route the State goes. It's just easier to win and send Mr. Defendant to prison.

There were a couple of issues the client and I discussed in an attempt to make his situation a little better. He did not want to plead guilty to the Class 3 UUW by felon charge. And I understood this. I asked the State if he could plead to the Class 4 possession of cannabis with intent to deliver count and still do the 2 years. The State refused.

Then I thought about proceeding to a VOP hearing. This way he would be subject to sentencing on the Class 4 felony he was already on probation for. He wouldn't have to plead guilty to the Class 3 UUW by Felon charge for the bullets. This was attractive on the surface, at least.

At a VOP hearing, this was a dead loser. But it was risky. The judge could give him up to 3 years (sentencing range for Class 4 felony is 1-3 years) rather than the 2 years offered at the 402 conference. But the new case was still lingering and the State would have a few options.

Regarding the new case, the State could be happy with the sentencing on the VOP and dismiss it. They could burn it in aggravation in the hopes the judge would give him 3 years. Or they could just proceed with that case and make us fight it.

At trial, I explained to the client that the new case was probably a loser on the weed (State would also need to prove intent to deliver) but that we might win on the bullets. So even if we lost on the weed but prevailed on the bullets, he could get another 1-3 years added to the time he would have to serve on the VOP. And he would also have to pay me to try the new case.

In the end, he took the judge's offer. He will probably do about 7 months downstate. This whole case stunk. I am not sure I was able to explain in this post how difficult this situation was because of the unknowns.

The cops only got the warrant for his house because someone snitched on him. Was he wrong to have the weed in his house? Yes, absolutely. Did he know the bullets were also there? I don't think so.

Was either the 11 grams of pot or the bullets really worth tax payer money to send him to prison?

Standing there yesterday during his plea hearing, I actually felt like chewing my own teeth.

www.schantz-law.com

Twitter