Tuesday, November 30, 2010

Keeping The Faith

I hope that someday soon I can write about pleasantries I encounter doing my job. As I have written before, the victories are too easily forgotten and the losses seem to take root in my spirit.

Today I had a client sentenced to 2 consecutive 31 year sentences. At 85%, that means just over 26 years each for a combined real time sentence of 52.5 years. My client is 35. This is most likely a life sentence.

I wrote a little about this case a year ago. I was hired just in time to stop the client from representing himself at a jury trial. This client maintained his innocence from the first second I met him. I didn't think he was lying. Further field work found much support for his innocence.

Prior to my appearance in this matter, the client had been difficult for the courtroom personnel and judge. It's never a good thing for a defendant to represent himself. But this guy is very principled. He was innocent. He wanted his trial. And he demanded it. The deputies told me that prior to my entry, he was difficult to deal with. Imagine if you were innocent but were sitting in the county jail with no bail. How agreeable would you be?

I walked in. Advised him to slow down. He allowed me to represent him. He took all of my advice regarding trial strategy. The client was charged with shooting 2 young men on the south side of Chicago. This was a very serious case with a considerable amount of potential prison exposure.

I was ready to try this case in 6 months, but the trial was delayed until July. It was my recommendation to take a bench trial. I was burned in April by a jury that didn't want to be there. The State's case was made up of entirely eye witness testimony from felons. I could tell from the police reports they were lying. And since my client was claiming actual innocence, they had to have been lying. My investigation of the case supported everything my client told me.

My analysis was that I felt it was better to trust an educated judge to see through a fictional story. My trial strategy was to pick apart the witness stories bit by bit. I did that. They all lied. They were all inconsistent with each other. I also put on a credible defense and the client testified brilliantly on his own behalf.

If I have an innocent client that can speak in complete sentences, I have no problem putting him on the stand. If he's telling the truth, the State will do no damage on cross. That was true in this case. But it wasn't enough. 

I wrote about the trial and the guilty verdict that still has me stunned to this day. Today my motion for a new trial was finally heard. In my argument for a new trial, I respectfully offered the judge erred in his credibility findings. I didn't rehash all of the inconsistencies and impeachments as I had in closing arguments. I didn't expect this judge to reverse himself. And he didn't. But I laid out a road map for the appellate attorney to follow.

My client told me that he had something he wanted to say to the judge before he was sentenced. I advised him not to say anything, but that ultimately it was his decision. And if he decided to speak, I would stand next to him in support.

Right on cue when asked if he had anything to say before being sentenced, my client pulled out 3 handwritten pages of legal pad paper and read a very well written argument that left me impressed on two accounts.

Keep in mind, I had no idea what was going to come out of his mouth. I had advised him not to insult the court or use profanity in any way. And he didn't. His argument, while largely a repetition of my own, was well organized and worded. I was impressed he kept his criticisms of the judge above the belt. I doubt I would be as composed.

At the end he told the judge again he's innocent and believes he will one day be vindicated. That was the second layer of impressiveness, his continued faith in the system.

He had and continues to have faith in a system that just sent him to prison for life. To me it seems naive. He was willing to be his own trial attorney because he believed his innocence would automatically prevail.

And from day 1 of my involvement in the case, he told me repeatedly he would not be convicted. His mind couldn't believe that a fictional story told by low-life, gangster felons would ever be enough to deprive him of his liberty.

If I am being honest, I too was naive. I didn't expect the State to prevail with this case either. If I had, I would have tried to negotiate a plea deal. But this case was going to trial from the minute he got indicted. He probably wouldn't have plead to a 1 year prison sentence because he would have to admit to something he didn't do.

If there is one thing this client said to me enough times to burn a trail in my memory it was "I didn't shoot these guys, Mark." He never called me Marcus. I don't like being called Mark but I never asked him not to. I wanted to get him out of jail so bad he could have called me Alice and I wouldn't have cared. We have that type of relationship.

But I was not blindly convinced of victory. If anything, the client has no idea just how much work I put into a case he felt he could easily win on his own. He just expected everything to work out since he is innocent. But I know that actual innocence isn't a winning defense in all cases.

I didn't expect an acquittal. I could never be so cocky. But I didn't expect a conviction either.  I was confident in this case and I would try it again tomorrow. I would do it for free. I would like nothing more than to hand deliver this man the justice that has eluded him.

It's bad enough when police skip around 4th Amendment protections and then lie about it. But to have an innocent client convicted like this, it's almost unbearable. It hurts.

The lead prosecutor on this case is an older woman who couldn't be more pleasant if she was my mother. But her problem is that she believed in her case and didn't smell the lies. I don't blame her. She didn't know what I know.

She never went to where the shooting happened and talked to anyone. Sometimes prosecutors are extremely sheltered and don't believe police misconduct occurs or that State witnesses lie. They often blindly believe in their case.

I sat her down and told her attorney to attorney what really happened and how my client ended up being framed. Her jaw almost hit the floor because she knew I was speaking the truth. It was obvious. To her credit, she appeared to be startled. But there was nothing either of us could do.

Most of what I told her couldn't be brought into court. Either the rules of evidence would keep it out or the additional witnesses wouldn't come to court. This case is a perfect example of what happens when people ignore crime and don't talk to police. I was lucky I got the 2 witnesses there that I did. Even though I had to hide them in a different courtroom because they feared retaliation. They didn't want it known they came to court and said anything.

After my client was sentenced and I filed the notice of appeal, the prosecutor and I walked out of the courtroom together. I thanked her for giving my client a fair trial. And she thanked me for being easy to work with, etc.

She still had a very troubled look on her face. I wonder if she will really believe my client is innocent. And if she does, if it will bother her that she convicted an innocent man as much as it bothers me that I took part in an innocent man being convicted.

But I have grown cynical. And my faith in the system is all but eroded. So far, this case is the pinnacle in my practice of everything that's wrong with the local criminal justice system. I am ashamed I played a role in a series of events that cost a man his freedom.

Somewhere there are 2 young girls that will never really know their father and a mother that will never spend another Christmas with her son.

Well, that is of course unless this whole mess gets corrected by a reviewing court. But to believe that requires more faith than I currently have.




  1. That's a very powerful piece. We often see the "atta boys" passed around when one of our compadres win, we often don't hear about the other cases that went south.

    You did what you could. That's all any of us can ever do. We are handed a set of facts and we just have to deal with it.

  2. Marcus, I wish there was salve for that wound. Thank you for sharing this--As much as I don't have faith in the system, it heartens me to know that there are people that still care about making it work.

  3. Marcus, I wish there were something,I could input into your mind to keep you from walking away from a case feeling depleted. As I write this due to the fact that tomorrow or today as it is after 12:am. You will be standing beside my cousin son and I believe in his innocent and that you did what God appointed you to do and whatever his faith is he will be able to accept it because his beliefs as mine that this is only going to be holding place for short while,eventually have the truth be told. Stay strong and keep doing what you doing, because if you in it to win it, it will be done with a little faith. Liz Hart, in Mississippi


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