Thursday, February 24, 2011

What Is Possession?

Here's a hypothetical based on a case of mine:

The police have an arrest warrant for Person A. They are able to trace him to a residence by phone calls he made from inside. The police assemble a small task force to go and apprehend Person A.

Person A is staying with his cousin. He has for about two weeks but isn't getting mail there. Her boyfriend, Person B, also lives there. Person A and Person B are both on parole, thus both are technically in violation of parole since they are both felons and are not allowed to reside together while on parole. Legally, only Person B resides at this residence. Person A is more of a guest.

The police arrive. They knock on the door and announce their office. Person A has a pistol. The cops know he likely has one. Person A panics. He heads for a window. Before he opens it, he throws his pistol on the kitchen floor. His cousin, the leaseholder, tells her boyfriend, Person B, to get rid of the gun. After all cops are about to bust down the door.

Person A hops out the window and is immediately arrested. Person B picks up the pistol and throws it in the oven. The cops are let in. They find the handgun. Person B and his girlfriend tell the same story. It's the version you just read. Person A, however, says the pistol belonged to Person B.

Both Person A and Person B are arrested and indicted for possessing the handgun. You might ask, how two people can be charged for possessing the same thing. I asked myself the same question. I was hired to represent Person B. He was immediately violated and sent back to prison where he remained for about 4 months until his parole was over. After that, he was sent back to the county jail.

His girlfriend hired me. They later got into a fight. She stopped paying me. What do I do with this case?

It's a great case in front of this judge. The state knows it. As charged it was a minimum 3 years. I filed a motion to suppress and later withdrew it. The issue wasn't the arrest, it was that he was even charged after the fact. And if I attempt to suppress the gun it's not going to fly. A defendant has to have a possessory interest in something in order to suppress it. In other words, you can't suppress something that's not yours.

The police were in the residence lawfully. They were granted consent to search. Though on the surface it appeared there was a legal issue, it was really just one of fact. Did Person B actually possess the gun for purposes of the statute? I felt he didn't. I think the judge would have agreed with me....but....

I decided to try the case anyway. It would take an hour at most. The State finally flinched. At my suggestion, they offered to reduce the charge so that a 1 year sentence could be given. My client had in enough county time that this sentence means nothing. He would what we call "dress in and dress out." In other words, he would walk into prison and shortly after walk out on parole.

The State made the offer. I relayed it. He took. He will be on parole before his case ever got to trial. And at trial....he could lose. Winners all around? I don't know. The State got a conviction. I got out of a trial I wouldn't be paid for. But what about the client? Did he win? That depends on your view.

Obviously another felony didn't mean anything to him. At this point he's already been locked up over this for 7 months. What's a few more weeks? Or at most a couple of months? He jumped at the offer and then thanked me up and down for sort of getting him out of this jam.

When taking his plea, the judge (a substitute) was told about his felony background. She remarked that he was getting an awesome deal that his attorney worked hard to get. I am standing next to him not thinking about my handling of the case. Instead, I was thinking about yet another client who just lost a year of freedom over a ridiculous case.

And the thing about this case is that it sailed through the grand jury. This case took less than 15 minutes to indict. Walking out of the courtroom I couldn't help but hope I never have to plead guilty to something I am not guilty of simply because the risk of maintaining my innocence could mean more prison time.

Was this case a winner at trial? I think so. If so, why did he take the deal? My own speculation is that the outcome was determinate. 1 year in prison. Trial risk was 3-7 years, plus a higher grade felony that could have really stung in the future. And also the fact that he will be home sooner than his trial would have been scheduled to begin. Trials rarely proceed the first time they are set. In theory, and based on my practice, he could have sat in county until May or June before he got his day in court.

There's just something not right about this.


Thursday, February 17, 2011

Carrying a Gun: Illegal Necessity?

The streets of Chicago are violent. We have a lot of gun crime. I have written extensively on gun-related issues. Over the last couple years, I've seen a pattern of gun possession cases that are alarming.

Many of our city's youth are carrying concealed handguns. That's a fact. But why are they carrying them? The reasons vary. Some kids want to be hard. Some kids want to shoot rival gang members. But many of my clients have carried them for protection. Or at least they say.

If you live in an extremely violent neighborhood where shootings are common, you have some limited choices (assuming moving isn't one of them):

A. Don't leave the house.

B. Don't carry a gun and risk being killed because you can't defend yourself if shot at.

C. Carry a gun and risk some prison time if caught.

Unfortunately all three choices stink, so maybe D. None of the above?

But I have had to ask myself what I would do. I know these neighborhoods. I know how violent they are. I've seen some of the bodies. I go in during the day and don't get near them at night. As the crow flies, Chicago isn't that big. But it's incredibly dense. My neighborhood is pretty safe from random street violence. But drive as little as one mile away and it's gangland.

My investigator is a retired homicide detective. He's allowed by law to carry a concealed firearm. He never leaves home without his .38. It's neatly clipped to the inside of his trousers like a beeper.

Survival is an instinct. A few million years of evolution have firmly implanted it in the human psyche. We eat to survive. We seek shelter in inclement weather to survive. We seek medicine to survive.

Thus the question is: is it morally wrong to arm yourself if it extends to your own survival? Not withstanding the law, is carrying a 9mm in Englewood different than wearing a winter coat when it's -10? Or eating to prevent starvation? This is an interesting philosophical question geared towards a college classroom where it can be examined in the abstract. I haven't the time for it. There's argument on both sides.

Arming oneself could also have a deterrent effect if it's well known you're packing. This could also work the other way if someone has to deal with you. They're going to be sure to bring a gun since they know you have one. You never want to be the one that brings a knife to a gunfight.

Personally, I don't condone arming oneself. I don't like pistols. But I understand why some do so. And it's probably why pistol cases are as benign to me these days as jaywalking. Two years ago my reaction was different. A mother would call and tell me her son got caught with a gun. I would think "oh, he must be a real thug if he's walking around with a gun!"

Then I would go to the jail and meet the son. And more often than not, son wasn't a thug. Son was  a 17 year old boy that lives in fear of getting shot and killed because he's surrounded by violence. Sure, I've had gang banging clients that sling dope. This is Chicago. I am a felony defense attorney. One party is sure to meet the other.

But I honestly believe that many of my pistol carrying clients were simply scared. The kind of person that would pull out a gun in a split second and shoot someone is markedly different than a kid carrying it for protection. They are as different as rabbits and pigeons. And I can tell in 2 minutes which one they are.

I've had very few clients that scared me. There have been a few, but most of them were just caught up in a series or poor decisions. Sometimes I think I've helped break that cycle, but in others, I'm just another tooth on the gear.

I still respect the law, however. Protection or not, it's illegal to carry firearms in most scenarios. The idea behind the law is public safety. But when too many people violate that law, public safety goes out the window and you end up with what we have now: violent streets.

This feeds the argument that if people (criminals) are arming themselves anyway, law abiding citizens should be allowed to as well. For protection. There's argument on both sides of this proposition as well. However, I don't see the logic of adding more guns to increase safety. I don't need a gun for protection. I don't live in fear. I avoid situations that unnecessarily put myself at risk. But if trouble somehow did find me, am I going to get in a shootout over my wallet? My car?

I don't carry cash and most would-be carjackers can't drive a stick, so I am ok. But not everyone in the city is like me. Some people do live in fear, like some of my clients. And they feel they need a gun for protection. But the law says "no".

If public safety is questionable and police efforts futile, what's one to do? Some choose to survive by any means necessary. A few months in prison is surely better than a box and 6 feet of dirt before you're 20, right?

I am thankful it's not a choice I have to make. Really thankful.


Wednesday, February 9, 2011

Training a Lawyer or a Heart Surgeon...

In Illinois, a newly licensed attorney can hang up a shingle and start taking cases immediately. Not too many lawyers do this, but there's nothing in the law or rules of professional conduct that prevents it.

Consider how different this is compared to a doctor. Most medical schools are 4 years. But then there's more years learning their specialty. It takes 5 additional years to properly train a general surgeon. If that surgeon wants to further specialize in say, heart surgery, a post-residency fellowship must be completed.

Upon my entry into college at age 25, I aspired to be a heart surgeon. But somewhere about half way through undergrad, I started counting years. 4+5+3= 12. 12 more years after college before I could become a heart surgeon. This also assumes I did well in medical school and was chosen to be a surgical resident. In other words, it was no guarantee I would ever become a heart surgeon.

Had I chosen that route, and assuming everything went smoothly, I would now only be in the first year of my cardio-thoracic surgery fellowship. It's been almost 9 years since I graduated from undergrad and so much has happened. I can't imagine how I would be right now with 9 years of medical studies under my belt.

Personally, I like that doctors undergo extensive training within their specialties and sub-specialties. We put our lives in their hands. Patients that need the services of a heart surgeon are generally very sick. In heart surgery, there is no margin for error. One slip of the scalpel could be catastrophic. The pressure must be intense.

I've stood at an operating table on several occasions and watched a heart surgeon and his team work. I was impressed to say the least. I saw an elderly patient on the table under general anesthesia with his chest sawed open. There was a giant clamp across his aorta. The heart-lung machine was busy keeping oxygen rich blood flowing through the body. Except for the heart, which lie still in the hands of the surgeon. He was sewing small pieces of vein, removed from the inner thigh, to coronary arteries the width of a pencil tip. The other end of the vein was sewn to the aorta, thus bypassing an occluded coronary artery.

Once the bypass vessels were sewn into place, the clamp was released from the aorta and the heart-lung machine stopped. Blood again flowed through the heart. The tiny vessels sewn into place didn't leak. Amazing. But the heart lie still in its cavity, though now a different color due to the blood pooling inside.

All of a sudden...pop, the heart restarted. It was one of the most incredible things I'd ever seen or ever will see. But it's electrical pattern was a bit off. A shock with internal defibrillator paddles quickly fixed the problem. You could sense a slight lifting of the pressure in the room. A quick count of instruments, needles, and sponges confirmed nothing was left in the patient. The conversation quickly turned to all things pop culture as the patient's sternum was wired shut and his chest skin sewed up. A radio was even turned on.

After the procedure I was in the locker room with the surgeon where we removed our scrubs. He asked me what I thought. I was impressed. So impressed I asked how he managed to handle the pressure. He didn't flinch once during the multi-hour procedure.

"I do this everyday. It's like being a car mechanic. If you fix transmissions all day, it becomes second nature," he explained. I loved his humility. Then I asked what differentiated a good surgeon from an ordinary surgeon. Or were they simply all great surgeons? "Good surgeons know how to get out of trouble. Great surgeons don't get in trouble," was his answer.

Almost 15 years later, I've never forgotten his answer. He said exactly that.

I have written in the past that the fact I strayed into felony criminal defense isn't too shocking given that I wanted to be a heart surgeon. It's a high risk, high stakes profession. Our clients are in dire need of our help. If we screw up, they pay for it dearly.

I admit I like to play super hero at times. It feels great to win when so much is in the balance. I have often wondered if I am really in this because I genuinely want to help people or is to stroke my own ego. Given that I lose more than win, I would say my ego gets battered more than stroked, so it has to be the former.

I digress.

But if a heart surgeon messes up, or has a patient die on the table for reasons not the fault of the surgeon, the patient never knows it. They just don't wake up. Sure there's a family you have to go tell that their loved one just died. But the heart surgeon doesn't have to look the patient in the eye and say "I did my best. But I failed you."

We have heard about doctors who get the God complex. It's doubtful they would feel so God-like if they had more patients die on them then they cured. Welcome to the world of felony criminal defense, doctor. 

Criminal lawyers, on the other hand, are not done with the case when a guilty verdict is read. There's post-trial motions and a sentencing hearing at the minimum. Every time you have to go back to court after a guilty verdict, it's like revisiting the place where your mother and puppy were murdered. Ok, it might not be to that extent, but it's pretty awful. The memory of the exact moment that the word "guilty" came out of the court clerk's mouth is forever burned into memory.

No, when things go bad for a criminal attorney, the after effects linger for a long time. Much like a surgeon, we can't save everyone but damned if we don't try.

Is it right that an attorney can walk right out of law school into a murder case when the doctor gets on the job training for another decade?

The answer is yes, but with a caveat. Trying cases is not heart surgery. Heart surgeries have a logical order of steps. You must do this before you do that, etc. Repetition and practice develop the insane level of skill a surgeon must possess. There are books that tell new surgeons exactly how to replace a mitral valve.  But there are not books that tell a lawyer exactly how to try his case.

There are books on trial skills, such as cross-examination or closing arguments. But no book I've ever seen can instruct a lawyer how to work a case from the minute it's accepted through verdict. If nothing else, the practice of law is a thinking profession. Surgeries are procedure intensive. I don't think it's possible to teach a lawyer how to try a case to the extent doctors are taught procedures.

When young surgeons start cutting, there's always at least one senior surgeon there to keep an eye on things. In a criminal courtroom, there's also always at least two prosecutors trying a case. The prosecutors even do motion hearings in pairs. Defense attorneys tend to fly solo. I've been fortunate enough to have volunteer help from a law student, but they can only lightly assist, though I greatly appreciated it.

Without a residency in trying cases, what's a new lawyer to do? If one works in the public defender's office, they are brought up slowly and shown the ropes by more experienced lawyers. I imagine it takes a Chicago PD about 5 years before they try their first serious felony. PD's start in traffic and misdemeanor court for a few years. Then they spend at least a year doing felony preliminary hearings. Finally, they end up in the felony trial courtroom. By the time they get to this level, they know their way around a courtroom. They know how cases move through the system. Simply, they're experienced. But sadly, a lot of them are totally burned out.

But have they really been taught how to try a case? Or have they figured it out for themselves with a little help? I think it's the later. And every PD I know personally, would confirm this. On the other hand, prosecutors are taught a system. They all have the same demeanor in court. They use the same buzz words. They wear the same suits. They have the same haircuts. They even use the same trial notebooks. And during voir dire they even draw squares in their notebooks to make notes about each potential juror...the same way. Heading into my first jury trial, I had no system. I brought 3X5 cards to use for jury selection.

There are methods we defense attorneys can be taught. There are skills we can practice. But there is no one industry accepted way to try a case. While trials are structured the same way, no two are identical. There's different jurors. Different witnesses. Different facts. Different evidence. Different crimes, etc. With all of the possible variables, it's easy to see how duplicating a trial is impossible.

And now for the caveat I mentioned. Rule 1.1 of the Illinois Rules of Professional conduct reads:
"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation"
What's that rule tell us? Not much, unfortunately. But the 2nd comment after this rule is a little more instructive:
"A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question."
To me this comment means that if you have a brain and are willing to hit the books and confer with other attorneys, there's nothing to prevent a lawyer from accepting any type of case, including a murder. And this is pretty much how I began my criminal practice. I watched. I read. And I asked a lot of questions from the older attorneys I befriended.

I cannot think of too many Chicago attorneys that became criminal defense lawyers one day with no criminal law background. It's just not done that much. And the list of reasons not to practice criminal law is much longer than the list of reasons to. But, it can be done. There isn't much that cannot be learned. I am still learning. I think I always will. While it's doubtful I will ever as be as skilled with my hands as a heart surgeon, I can learn to use my mouth and language to better teach a trier of fact my theory of a case.

And some day I would like to be able to know from first-hand experience that a good lawyer can push through nerves and shakiness to win, but a great lawyer believes in his case so strongly that he's impervious to self-doubt.