A Closing Argument

From my most recent trial...

If you follow me on Twitter, you know my client was found not guilty on Friday August 26, 2011 by a jury here in Chicago. He was charged with two counts of attempt first degree murder with a firearm, two counts of aggravated battery with a firearm to a police officer, and four counts of Armed Violence. On the day of trial, my client was 23 and could have been sentenced to natural life in prison if convicted.

Here is my actual closing argument I used in the courtroom. What's missing from this are the pictures I showed the jury to aid in my argument.

I am not posting this because I think it's anything special, because it's not. There was only one draft (this one) and was finished literally hours before I gave it. I got home the night we rested our case (Thursday Aug 25) at about 8:00 pm. I took off my tie and dress shirt, but left my slacks and undershirt on. I was too focused on getting this done to change clothes. I made some handwritten notes that took maybe an hour. I ate some take out food.

At about 10:00-10:30, I opened a bottle of Corona, put some lime slices in it, sat at my computer and just started typing. My co-counsel sat on my floor jotting down her own notes that she felt should be incorporated. This is what came out over the course of the next few hours. I finally got most of this done at 2:00 am but went to bed because I was starting to make a lot of typos and knew I needed sleep. I was up on Friday morning at 6:00 am. Loaded with a cup of coffee, I sat down and worked in my co-counsel's suggestions and this was finished by 7:00 am.

Just thought there might be some interest.

Here is also a link to one of the news stories when this incident happened on July 16, 2009. According to my file, I was hired on August 6, 2009. 
 

[all names but my client's have been abbreviated. My client's name is Kenneth, but goes by Kenny. I started referring to him during opening statements as Kenny in an attempt to humanize him. I added some material to this argument very last minute, but this is about 95% of it.]

Homicidal or suicidal, that’s what you have to be to shoot a gun at police officers that are in your home to execute a search warrant, homicidal or suicidal.

This was a case about reckless police conduct that resulted in two officers being shot on July 16, 2009 at _________. But everyone lucked out. Fortunately for the officers, they were released from the emergency room later that day after being shot in the lower leg. Kenny also was extremely lucky he wasn’t killed 10 times over, because as Officer J.M. said, he was shooting to kill him. Police officers fired 37 times into that very small bedroom but almost magically Kenny wasn’t hit. And we saw that bullets fired by police officers went through the wall in Kenny’ room and entered into H.W.’s room where she was sitting on her bed holding her small child. Neither she nor her child were injured either.

I think it’s terrible when police officers are shot in the line of duty. That’s not supposed to happen. But in this case, their own recklessness is to blame, not Kenny Green. This whole operation was rushed. We heard testimony from Officer J.M. that he met with the confidential informant on the morning of July 16. Judge K. signed that warrant at 10:00 am. Three hours later at 1:00 pm, they busted through the door, with guns drawn.

There was no investigation. You heard all they knew was that someone named K.H. lived there. They didn’t know how many adults lived there. They didn’t know if anyone there had a violent history. They didn’t know if K.H. was a dangerous person or was known to keep firearms around him. Officer J.M. told you he was told there might be children at the residence, but he then admitted to telling an investigator shortly after July 16, 2009 that he was not told about any children being at ____________. And how many children were actually there when the cops busted in and started shooting the place up? Six. There were six children there and three of them were within a few feet of all this shooting. And there was another child on the other side of a wall that police fired bullets pierced through.

You heard testimony from Sgt. S. He was the person in charge and it was his duty to contact a SWAT team if needed. He told you a SWAT team would be used for officer safety. And he told you the conditions in which a SWAT team would be needed. Remember when he said a SWAT team would be used? A SWAT team is needed if people on premises had violent backgrounds and/or history of violence to police. Or if there were numerous offenders on premises and the likelihood of firearms on premises was great. How many of these conditions did the cops really know existed or not? The answer is none. They had no idea what the conditions were.

Would a SWAT team have been necessary for this operation? Probably not, but the fact the police didn’t ascertain whether one was indeed necessary shows how careless they went about executing this warrant.

But there is one simple thing the police could have done on July 16, 2009 that would have avoided this whole mess. They didn’t have to try to kick in Kenny’s door when the battering ram was a mere few feet away. Officer G. told you he left it on the porch when they went inside. Officer OT. told you he was trained how to use that ram. He told you he has been responsible for using that ram to open doors during warrant executions in the past. Officer OT. called that bedroom door flimsy. He also said it didn’t have a deadbolt lock. But do you remember he avoided answering my question when I asked if the battering ram would have worked on the bedroom door? And Officer G. also avoided answering the same question. Of course that battering ram would have opened that bedroom door.

That device is designed and used for opening exterior doors. What do you think it would have done to a flimsy interior door with no dead bolt? It would have blown it off the hinges in one strike. If they open the door with that battering ram, Kenny immediately knows it’s the police, just like L.H. did when she saw them and Kenny never gets his gun and then no one gets shot.

That battering ram was only a few feet away from Officer OT. Instead he and Officer M. both turned their back to the door and attempted to kick it in. On the other side of that door was Kenny Green who thought people were in his house that wanted to kill him and/or his family. And because he reasonably felt his life depended on it, Kenny fired his gun to stop this violent intrusion into his home.

The fact that the intruders were actually police officers is unfortunate. Had Kenny Green known they were police officers, none of this happens.

How do we know this? It’s simple. If you’re Kenny in this situation and you know it’s the cops trying into get in your room and you shoot at them, you would have to be one of two things: suicidal or homicidal.

We know Kenny wasn’t suicidal because he jumped out of the line of fire and stayed in the one spot in that bedroom that he was safe. Had Kenny wanted to die, that’s an easy fix. Stand up in front of that door and he’d be dead pretty quick. Or stand up in front of his window. That would have worked too. Kenny didn’t want to die on July 16, 2009. He tried to save his life, not end it.

But Kenny wasn’t homicidal either. He told you that he wasn’t trying to kill the person on the other side of his door. He told you he shot low towards the ground. And the evidence supports this. Both officers were struck in the lower legs. And bullets likely fired from his gun were found underneath the box spring directly across from his door. The box spring was mere inches off the floor. The fact that bullets were found underneath it proves that all the rounds Kenny fired were low towards the ground just like he testified.

Also remember the fact that there were still 5 live bullets in Kenny’s gun. If he were really trying to kill someone, he would have fired all 9 bullets in his gun. But in reality, he didn’t even fire half of them. He fired 4 times low to the ground and then put his gun down as soon as he realized it was the police. The testimony was that once Kenny clearly heard the police talking to him, not only did he speak back to them, but completely complied with their orders and commands. After which he was kicked in the face by a police officer while lying facedown on the floor.

The police would have you believe that they came into Kenny’s apartment with their manners intact. They claimed they calmly ordered K.H. and L.H. to show their hands and not move. But do you really think that’s what happened? Or did they say “Don’t fucking move and put your mother-fucking hands up!” I’ll let you decide that.

There was a lot of testimony about the way the police approached and entered the apartment. A couple officers said Officer G. announced it was the police. And a couple of officers testified they all stood our there yelling, “Police, Search Warrant.” I don’t think it’s really clear who among the officers said what. And I don’t think it matters. You heard testimony that they only waited 10 seconds from the initial knock until they broke the door open. 10 seconds. That’s it. Who among you can answer your front door within 10 seconds after you hear a knock? That’s pretty fast. But it doesn’t really matter. No one inside the apartment heard them knock.

You heard police testimony about why some officers are assigned to the perimeter of where they are executing a search warrant. You were told that often times when people know the cops are coming in, they throw things like drugs and guns out the window. Remember Kenny’s window? There was a large open gap between the edge of the air conditioner and the window frame. He could have easily thrown drugs and the gun out of the window. But did he? No. Why? Well, not only did he not know there were drugs in his room, he didn’t even know it was the police trying to bust down his door.

You have basically two issues to decide. Was Kenny Green justified when he defended himself, his family, and his home? And did Kenny Green possess crack cocaine. Regarding the first issue, let’s look at the facts.

Here is Kenny Green. Awakened from sleep by a rumbling and the sound of screams. He walks towards his door, goes to reach for the knob to open it, and a foot comes bursting through it. He’s immediately scared. He backs away from the door and crouches down. He looks through the hole the foot just made in the door. He sees blue jeans and someone run towards the front of his house where his mother and sisters were. That testimony was corroborated by all of the police testimony of officers who entered the apartment. Remember, Officers G, and Mu. entered and immediately went towards the front of the apartment. This testimony was further corroborated by J. G. who told you she was encountered by a police officer running at her from the back of the apartment.

This was an attempted violent entry into his bedroom. Kenny was just threatened days before by some local gang members that his home was going to be run in. He took this threat so seriously that he bought a gun for protection. He thinks they are making good on their threat. Kenny had been shot with a gun three times and lived, though he lost a kidney as the result of one shooting. Did he think he we would survive a fourth attempt on his life? He was in a very reasonable fear for his life and that of his family. His adrenaline was pumping. This is all happening in mere seconds. He grabs his gun and he shoots.

Was he justified? Absolutely. He did what any reasonable person would have done in that situation. Our system of law recognizes the unquestionable right to defend one’s self and one’s home. The law says that you may respond with force when you reasonably believe the use of that force is necessary to defend yourself against the imminent use of unlawful force. In other words, you don’t have to wait to defend yourself until after you’ve been assaulted. You can take action to prevent it. And that’s exactly what Kenny was doing. He was trying to prevent being killed or seriously injured.

What about defending your home? What’s the law say about that? The law says that you can use force to terminate another’s unlawful entry into your home. In this case, clearly Kenny thought there were intruders in his home attempting to harm him and his family. He was hearing a family member screaming and faced with his door attempting to be busted open. Thus, Kenny was justified in three ways, defending himself, his family and his home.

The law doesn’t say you have to ask who’s kicking down your door before you take action to repel them from your home or prevent them from harming you. The law also doesn’t say you have to warn them before you shoot. And you certainly don’t have to call 911 when you think your life could be over in a matter of seconds.

In this case, Kenny simply did not know these were police in his home because again, to shoot at police who armed and have their weapons drawn and ready to fire, you’d have to be either suicidal or homicidal. Kenny Green was neither. He acted in defense of himself, his family, and his home. And he was absolutely 100% justified in doing so.

The State wants you to believe that Kenny’s door was ½ way broken off before he fired his gun and thus should have known they were cops. Kenny testified there was a hole from a foot coming through it. Officer M. testified he didn’t know what the actual condition of the door was when he was hit. But if that door had been ½ broken off, wouldn’t Officer J.M. have fired through the wide-open bottom instead of through the middle of the door. Remember all the bullet holes in the middle of the door caused by the police fire? If that whole bottom had been broken off, there’s no way the cops shoot through that door with an assault rifle and not hit Kenny.

Officer J.M. shot the rifle 23 times and Officer OT fired his 9mm 14 times. Despite firing into Kenny’s room 37 times, he wasn’t hit once. And why is that? It’s because they couldn’t see what they were shooting at. Or they are the worse shots in the history of law enforcement. Much of the police testimony didn’t make any sense and contradicted itself. Officer J.M., who fired the assault rifle, testified that even after all that firing, his ears were not ringing. But Officer OT. said he’s suffered permanent hearing damage and actually could not hear right after the shooting.

Remember Officer G. tell you that he didn’t see Kenny being pulled from out of his room and that he didn’t clear the bedroom after Kenny was removed from it? But then he was confronted with a statement he gave to an investigator soon after July 16, 2009 that indicated he did see Kenny being pulled from that room and that he did clear it. In fact, he got up in front of you and told you he recognized the pictures from Kenny’s room because he had cleared it.

And how about Officer OT.'s testimony about what he did and saw after going out on the back porch after he was shot. Do you really think it’s possible for him to have looked into that window let alone shot at Kenny while holding his gun with his left hand even though he’s a right-handed shot? Do you remember when I asked him to show you all on the picture where his feet were when he performed that miraculous stunt? And do you remember his answer? I don’t recall. He didn’t recall because he never looked in that window. It’s impossible. What he did was hold his gun over his head and pointed it towards the window and fired. If he was able to safely see inside and safely fire his gun, he wouldn’t have shot the air conditioner 6 times, right? Doesn’t this sound incredibly unsafe?

And Officer O’T.’s testimony that he saw Kenny standing up and firing, while impossible to have seen, was also directly contradicted by the testimony of Sgt. S. Remember Kenny could only have fired that weapon 4 times. Kenny said he remembered firing once, but that due to the circumstances of being in fear coupled with massive amounts of adrenaline pumping through his body, he probably did fire 4 times total.

There were two initial shots. Those were probably the ones that hit Officer OT. and Officer M. There were two and only two more shots. Sgt S. testified the 2^nd two shots came while Officer OT. was inside near the bedroom door and before he came back out on the porch. If that’s true, than it’s impossible Officer OT. saw Kenny firing. I just said it was impossible for him to have seen in that window, but there were no more rounds fired by Kenny, thus doubling the impossibility that Officer OT. saw what he said he did.

And lets not forget that Officer OT. said that when he looked inside and saw Kenny, Kenny was standing up in front of the door, arms extended shooting his gun. He even said he saw muzzle flashes. We know that can’t be true because if it were true, Kenny would be dead.

The second issue you must decide is whether the crack found in the west bedroom was his. One of the most instructing pieces of evidence was Officer J.M. own sworn search warrant complaint. The document prepared and showed to Judge K., who approved the warrant and interviewed the C/I, indicated the confidential informant purchased crack from K.H., not Kenny. And that K.H. went into the bedroom to get the crack.

The premise is that K.H. kept some of the crack he was selling in the west bedroom. Besides the search warrant complaint, what else corroborates this premise? J.G. testified that Kenny only stayed in that house 1-2 nights per week. L.H. said the same thing. And Kenny told you he spent 4-5 nights per week with his girlfriend in Indiana. J.G. and L.H. also testified that K.H. and L.H. slept in that bedroom on nights Kenny wasn’t home. Kenny told you that K.H. had permission to sleep in his bedroom when he wasn’t home and to keep some of his things in that bedroom. Kenny said “K.H. is my brother”.

What we have is evidence that K.H. was in that west bedroom a lot. And his own fiancée told you that at the time of this incident, K.H. was indeed selling crack. What corroborates this claim? The police’s search warrant complaint. Remember, the C/I said he bought the crack from K.H., not Kenny. Also L.H. testified that K.H. regularly kept crack in both of the back bedrooms and moved it around everyday.

What you did not hear was any evidence that Kenny Green had anything to do with crack cocaine. There was no evidence of this. The police didn’t tell you they got any of Kenny’s fingerprints off the drugs, did they? The State didn’t produce one witness that told you they ever saw Kenny in possession of any crack cocaine. The State wants you to believe that simply because some crack was found in a bedroom Kenny spent 1-2 nights a week in, that it was his crack, when all of the evidence proves the crack belonged to Keith.

You saw how small the packages were the crack was found in. You saw the pictures of where they were found in the room. And you heard from the officer that recovered the crack that none of it was in plain view. The police had to move stuff before they could find it. If the cops, who are trained to find drugs, couldn’t see it without looking for it, it’s easy to see how Kenny who wasn’t there that much would have not known it was even in his room. [Jury instruction on possession]

It’s simple. That crack belonged to the crack dealer, K.H. The person the C/I bought the crack from, K.H.

[Jury instructions; Attempt Murder, no intent. Aggravated Battery, didn’t know were cops]

When I stood up here before you on Tuesday morning, I told you the story of what happened from Kenny’s eyes. I attempted to put you in Kenny’s shoes on July 16, 2009. Even though he didn’t have to, Kenny told you all yesterday what happened, how he felt, and why he did what he did. And what he told you was the truth.

I told you that you would come to two conclusions once you heard and saw all of the evidence. The first conclusion was that Kenny was justified in doing what he did to protect himself, his family, and his home. And the second conclusion I said you would reach was that the crack cocaine did not belong to Kenny.

I also said that these conclusions would be very sensible if you used your common sense. Now it is time for you to use your common sense and when you do, you will easily find Kenny Green Not Guilty on all counts. We ask that you all sign the Not Guilty verdict forms. It’s ok for you to do so and feel good about your verdict because if you do the job you were sworn to do as jurors in this case, Not Guilty on all counts is the only proper verdict that’s supported by the evidence you were presented with.

Read more about this case here. 

www.schantz-law.com

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