Tuesday, March 27, 2012

Closing Argument From Cold Case Murder Trial

About two years ago, someone in the county jail (I can't remember who) gave my business card to his cell mate. Around here we call them 'cellies'. A short time after that, I was called by a woman who told me her brother was in the county jail over a murder that happened in 1984. My ears immediately perked.

The next day, I went to the jail to meet this person, who I will call Steve. First impressions make an impact on me, especially when meeting new clients on very serious cases. Steve was in his mid 40's, short, and sort of round. But he had a very engaging smile and was very gentle. I asked Steve to tell me what he knew (at this point he's only been indicted but had yet to appear in a trial courtroom).

He explained to me (based on conversations with the police) that a woman was stabbed to death back in 1984. He said he knew her and had been having a consensual sexual relationship with her. They had met in the early 80's when they lived on the same block. Even though I didn't know the evidence per se, I did know there had been a DNA match for the local media covered the arrest. I thought well, that explains the DNA, why are you locked up?  He continued telling me the story.

His good friend in 1984 had a child with the woman who was murdered. There was a custody issue and apparently the father had taken the 1 year old child for a weekend and never returned him. It was the police theory of the case that my client's friend murdered the woman and my client was accountable under accomplice liability.

That's a nice theory. But just that.

Reviewing the police reports from 1984, I learned the police department developed 3 suspects: my client's friend, the woman's current boyfriend, and the janitor in her building. The boyfriend and the janitor were cleared as suspects within a couple of weeks. But there was no documentation that the police ever spoke to my client's friend. After 3 weeks, the case went cold and nothing more happened until 2008 when a phone call came into the Cold Case unit of the Chicago Police Department.

It just so happens that sometime around 2005 (I think), the Department of Justice launched a grant program titled "Solving Cold Cases With DNA". The money pumped into that grant program exceeded 10's of millions. The application process was pretty simple. A law enforcement agency that had legitimate cold cases for which there might be DNA evidence, were given a lot of money to pay for working up the cases.

The grant money was allowed to be used for new equipment, new employees, and to pay for work performed by outside sources. In other words, the Federal Government paid for all of the DNA lab work, which is not cheap. The Chicago Police Department was awarded a grant in the amount of about $750,000. You can look all this up. It's how I found out about it.

At the time of the murder, spermatoza was recovered from the victim. It was frozen. When the case was reopened, the biological evidence was sent to a very well known DNA lab. The lab was able to extract a profile of an unknown male. The profile was sent back to the Illinois State Police crime lab, who ran the profile against the CODIS database.

For a long, long time people convicted of felonies in Illinois have had to submit a DNA sample to be kept on file. I think this is done in every state. It's done by a buccal swap, which is nothing more than a long Q-Tip being rubbed inside the mouth on the cheek wall. When the DNA profile was ran through the system, it indicated my client was the donor. Ok, not surprising.

But the police had no idea who my client was. He was never mentioned in the original case file. However, my client's friend who had fathered a child with the victim died in 2005. Though the DNA match came back in June 2009, detectives working the case waited until February 2010 to seek out my client.

They found my client on the street. The detectives identified themselves and told my client they were investigating a murder from 1984 and wanted his help. He voluntarily went to the police station and was advised he was not under arrest.

What happens next is anyone's guess.

According to the detective's, within 2 hours, my client admits being there at the time of the murder and claims he was paid $2,000 to be a lookout. They claim he said that his friend (father of victim's child) told him he was going to go kill her. He allegedly had sex with the woman while his friend watched, who then had sex with her but out of the presence of my client. Then the friend comes out of the room and says he's going to kill her, goes into the kitchen, gets a knife and goes back in. The client hears screaming but never sees what's going on in the room.

A short time afterwards, the would-be killer emerges from the room with no blood on him or his clothes. The crime scene photos were macabre and very disturbing. The poor woman had been stabbed/cut 23 times. Her jugular vein and carotid artery were severed. There was a lot of blood in the immediate area where she was found, including the wall adjacent to the bed on which she was apparently killed.

In Illinois, it's required that all homicide related interrogations be electronically recorded. It's been the law since 2005. The 5 Area Headquarters from which the detectives work have several rooms equipped with video and audio recording equipment. The problem with my client's alleged statement was that it was not recorded per statute. He was eventually put into a room equipped to record, but at no time did he say what the detectives claim he did that inculpated him.

In fact, there was an argument about whether or not he had been properly Mirandized. As soon as the detective reads the Miranda rights from a pre-printed card, my client asks to speak with a lawyer. But it didn't end there. What happens on this video is troubling. The detectives blatantly ignore two separate requests for a lawyer and an invocation of the right to remain silent. If you're in my line of work, the video would have stunned you. It was that bad.

Eventually the interview ends and my client is indicted. I filed a motion to suppress the alleged oral statement since it was evidence that did not comply with the statute. Convicting someone of murder on hearsay evidence should NEVER be allowed, thus the statute in Illinois. The hearing on my motion lasted an entire afternoon. The judge ruled that the statement had been taken in violation of the statute, but ruled it admissible anyway.

A very lengthy Motion to Reconsider was filed and argued by me and denied. The statement was coming in. I did get a sense that the judge had some serious problems with the State's case and especially after I played the video at the hearing. My instinct told me a bench trial was the right way to go.

The trial began on March 13, 2012. The State put on evidence the 13th, 14th, and 15th. But the state still had one more witness and therefore the case was continued till today, March 27, 2012. Today the State put on one witness and rested. I put on no case and rested.

This morning at about 5:30 am, I got up to write the following closing argument. Since I usually write my closing argument the night before or the morning that it's to be delivered, it's impossible to commit it to memory. During the trial I keep a running list of points to make during closing. I take those notes, sit down, and I write it, usually in just one draft (though I fix typos and might change an occasional word). I also scribble additional material when I get to court or when the state is closing.

For some reason, it occurred to me years ago that the content of my closing arguments is more important than the style in which it's delivered. The President always uses a teleprompter when delivering the speech, for it is the President's message that's more important. Of course, though it's being read, it has to be delivered in a way to obtain the maximum effect. In other words, Presidential speeches are not delivered like a 5th grade book report to the class. It's been written that trials are part theatre. I know this to be true because I realize that while conducting a trial, I am, in a sense, performing.

Based on this, I read my closing arguments to the trier of fact. And I've never seen another attorney do this. I am sure others do, but I've never seen one in person. I clearly remember from my trial advocacy class in law school that reading argument to the trier of fact was a no-no. I say bollocks to that.

Of course it's important to have a sense of style in a courtroom during a trial. If you're the defense attorney, you spend the entire trial advancing your theory of the case. By using cross-examination properly, it is the defense attorney's job to teach the trier of fact the defense theory of the case.

Unfortunately, I see a lot of defense attorneys that have never made this connection. Too many defense attorneys want to fight and argue with government witnesses and it accomplishes nothing but making you look like an asshole. And gives the trier of fact two opportunities to hear the same testimony which probably favors the prosecution.

My style of cross-examination is much softer but precise. I elicit questions that are answered with a simple "yes". While the witness is sitting there answering my questions which a "yes", it's me testifying and the witness agreeing with me. Example: Q. "When you saw my client, he did not a gun in his hands, right?" A: "Yes". There is no argument during my cross of anyone. And if a witness can't give me one answer that advances my theory of the case, I keep my butt in my chair and say "no questions".

But I digress. Below in my closing argument that I started writing this morning before the sun came up. This is not word for word what I said because I do change on the fly to coincide with my delivery of a point.
The State has attempted to establish that [ ] was the murderer of [ ] because it's essential to their theory of the case. If [ ] didn't commit the murder then Steve can't be the accomplice. However, this case is not about whether or not [ ] murdered [ ]. The proper inquiry is whether or not [ ] told the police what they claim he did, which inculpated him in [ ]'s murder under accomplice liability.

With the lack of physical evidence which might support an implication that [ ] had anything to do with [ ]’s murder, the only evidence that implicates [ ] in the crime for which he is being charged, is an alleged oral statement that was not electronically recorded per 725 ILCS 5/103-2.1. Thus, the issue before the court is the credibility of the Detective [ ] and Detective [ ].

When the legislature enacted 5/103-2.1, the purpose was to prevent defendants in homicide related cases from being convicted, in part or entirely, on hearsay evidence. This court acknowledged that the alleged inculpatory oral statement was taken in violation of 103-2.1, but that subsection (f) allowed it to be admissible. I disagreed with the court’s ruling, and respectfully, I still do.

Since the court has allowed the alleged oral statement into evidence in this trial, being the finder of fact, the court must determine the weight to be given to that evidence. When the court decides the weight, it must look to the source of the evidence. This is where the credibility of the detectives must be considered when determining the weight of this evidence.

Only one detective testified in this case, that was Detective [ ]. The court had the opportunity to listen and to watch this witness testify. When my cross-examination of the detective began to touch on the video recorded portion of [ ]’s interrogation, the detective, at times, became evasive and agitated.

The detective admitted that he was aware when Miranda warnings to be given. He also admitted that he knew that once a suspect invoked his Miranda warnings, the interrogation was to immediately cease.

When I further confronted him on cross-examination regarding the content of the he asked the court permission to give a very long answer to a yes or no question in an attempt to defend his and detective [ ]’s actions. At the end of this speech, he still had not answered my question.

Then the court watched the video. And what the court saw was [ ] denying that he was previously specifically told he had the right to an attorney. But as soon as Detective [ ] told him this right, [ ] immediately invoked that right. But the questioning continued. Detective [ ] testified that immediately prior to be taken into an ERI room, [ ] was Mirandized and told he was under arrest. And that no further questions came after he was Mirandized until they were all in the ERI room.

The video contradicts the detective’s testimony. First, if [ ] hadn’t been asked any further questions after he was Mirandized prior to being brought into an ERI room, there was no reason to establish on video that he had been already Mirandized. Just read him his rights again. But the court watched an argument started by Detective [ ] about whether or not [ ] had been previously Mirandized. In the conversation, [ ] denied being properly Mirandized.

It’s also curious that as soon as [ ] is told he has the right to an attorney, he immediately invokes that right. The testimony of Detective [ ] is not in agreement with what we saw on the video. But there’s another issue where Detective [ ]’s testimony was contradicted by the video.

Remember the testimony was that [ ] was told he was under arrest prior to being brought into the ERI room. But at a point in the video, detective’s ask [ ] (p. 12), “Were you ever told you were under arrest? Were you ever told you were under arrest”? Answer “Y’all got me in here.” Question “Were you told you were under arrest?” Answer “No.”

This is proof the detective testified inconsistently with the video evidence.

The video itself is very troubling. Once [ ] asks for an attorney, rather than stopping the interrogation per law and CPD procedure, Detective [ ] asked 23 more questions while Detective [ ] sat there and did nothing. [ ] again invokes his right to an attorney, but Detective [ ] continued, and asked [ ] another 28 questions. Then [ ] invokes his right to remain quiet, and 10 more questions follow.

During this all, there is clear understanding by Detective [ ] that [ ] has invoked his Miranda rights, because he asks [ ] 4 times if he wants to waive them. Both Detectives also indicate they are aware that [ ] has invoked his rights. At various times, both detectives tell [ ] that they can no longer talk to him, but they still attempted to question him. Detective [ ]’s claim that it was [ ] that kept the questioning going is absurd. The only reason [ ] said anything further is because he was continued to be unlawfully questioned.

What is troubling about the video is that two veteran CPD detectives did not follow the law or their own department’s policy. What was saw was police misconduct of the highest order. It was willingly, knowingly, and flagrantly committed. [ ]’s Miranda rights never existed on that day in February 2010.

It is exactly that type of conduct, for which 103-2.1 was created. The legislature obviously felt that in some cases, detectives could not be trusted to follow the law. This case is prima facie evidence of police misconduct in a murder case.

That the detectives were so diabolical while they knew they were being recorded, makes me shudder to think of what can happen when they are not being recorded. It should also be noted that at no time in the video recording did [ ] ever repeat or even agree with what the detectives allege he said. [ ] in no way implicated himself on video, though the detectives want the court to believe that he had just done so a short while in the past.

From the beginning of that interview, the detective asks [ ] a series of leading questions, in other words, the detective was giving a statement that was being recorded and asking [ ] to agree with what he said. But almost immediately, [ ] does not agree that he was told he had a right to a lawyer and then instantly asks for one. But even thought the questioning went on, [ ] never agrees with the detective regarding the statement which implicated him in this case.

In cases where it appears that an alleged admission of guilt occurred or that someone caved under pressure and gave a false confession, you have to look at the statement and compare it to the physical evidence.

And a couple of things that [ ] was alleged to have said, don’t make sense. Being a look-out inside an apartment with three locks on the door makes no sense at all. If [ ] had put himself out in the hallway or even outside of the building, that would make sense, but inside an apartment? That doesn’t compute.

It was also alleged that [ ] said that after coming out of the room which [ ] was in and ostensibly after [ ] had killed her, there was no blood on either [ ]’s clothes or himself. The court saw the crime scene photos and the tremendous amount of blood. Is it possible that someone could have committed that crime and walked away with no noticeable blood on him? It might be possible, but common sense tells you that it was highly unlikely.

According to police, [ ] heard [ ] screaming for help, but yet two very small children sleeping on the other side of a wall in a very small apartment are not awoken. Additionally the absence of any DNA or additional biological evidence that point to anyone else having sex with her after [ ] is claimed to doesn't make sense. Remember there was no additional biological evidence recovered from [ ].

The presence of the playing cards in the other room laid out as they were, suggests that [ ] could have been playing cards at some point that night. And you heard testimony from witnesses that indicated the [ ] was a regular card player.

In this case, the deck of cards were not found in its box. But rather they were found spread out on a pillow in an adjacent room. If the court has ever played solitaire, it will be clear that the arrangement of the cards is not consistent with solitaire, which someone can play by themselves.

Do we know for sure that [ ] played cards that night. No. But we don’t know that she did not. And if she did play cards, that puts at least one other person in her apartment that night.

The State has gone out of it's way to establish that [ ] didn't know [ ], but the testimony at trial was that they both lived on the same block in 1983. If she was indeed involved in a sexual relationship with [ ], it makes sense that she never disclosed this to her family, especially since she had a boyfriend at the time. The State has also tried to establish that [ ] would have never of had sex with a teenager. But at the time of her death [ ] was only 24 and [ ] was 19.

The state is asking this court to believe that [ ] was the murderer, and though he’s dead, they got his accomplice. But not only is there no real evidence that supports a theory of [ ] being an accomplice, there’s no evidence that [ ] was the person who physically committed the crime.

The absence of police records from 1984 pertaining to [ ] means one of three things. Either the police were unable to locate him, even though they were given two possible current addresses and a former address along with his mother’s phone number. Or he was eliminated as a suspect. Or whatever case they might have had against him was strong enough to bring charges.

But the point is that [ ] was never arrested in connection with this case. And testimony in this case stated that at the time in 1984, [ ] owned and operated several businesses. To imagine that he was not found, is impossible to believe. And as you heard Detective [that worked the case in 1984] say, a possible suspect in a murder case would have been investigated. The reason this case went cold is because the police ran out of leads. 

The State is attempting to boot strap [ ] under accomplice liability to a person that’s dead and was never charged in this case. And the state’s only clear evidence is that [ ] had sex with [ ] before she died. The court and both detectives at a hearing in this case stated the DNA was not proof that [ ] was in any way involved in [ ]’s murder. And the medical examiner admitted that the sperm could have been in [ ]’s body for up to a day before she was killed.

I am asking the court to give no weight to this alleged oral statement. The detectives clearly have serious credibility problems which was proven by their actions on the video. Those detectives cannot be trusted or believed. The video itself is proof of their dishonesty. If the court agrees with me and gives no weight to the alleged oral statement, then the proper finding is not guilty and that’s what I ask for. For it is the just verdict in this case.

The judge essentially adopted most of my closing argument in her finding of not guilty on all counts. What's bothersome about this case is the tremendous amount of time and money that was wasted. And in the end, it's my belief the police department cheated the victim's family. The family asked that justice be served over the murder of their loved one, but instead the police attempted to con them.

Had that grant money not been in existence, I doubt this case ever gets worked up. But there was money to spend and spend they did. For they had to spend the entire grant money within 18 months or return what was left. I highly doubt the Chicago Police Department wrote the Department of Justice a refund check.

In essence a well designed program was taken advantage of and misused. Looking back, however, they did have evidence that might contain DNA, and it did. But once the match came back, it took the detectives a while to figure out how to pin this case on my client. It is my firm belief that they learned prior to talking to my client that he and the purported murderer were friends.

Once they knew that, it was just a matter of construction to implicate my client as an accomplice. It must have appeared to be a nice, tidy investigation. They had a friend of an original listed suspect, whose DNA was recovered from the victim's body. Voila, case closed.

In these situations, it's the job of the defense attorney to step in and say "Wait a minute. Not so fast".

And that's all I really did.



  1. Mr. Schantz,

    Stunning closing argument, and quite creative to focus on the lack of credibility as opposed to some grandiose theory of how he could not have done the crime.

    However, as a few follow-up questions, would you ever consider incorporating such an approach with a Jury? Furthermore, why do you think the judge would have allowed the statement in if in fact it was against the manifest weight of the statute, and she/he had reservations about it?

    Congratulations on the prolific defense of that poor defendant's Constitutional rights, and please keep up the phenomenal work, it's quite inspirational!!!!

  2. I truly like to reading your post. Thank you so much for taking the time to share such a nice information.
    not guilty

  3. Excellent closing. I have one question though. I am just a trial watcher, not a lawyer. I was curious about your statement "When the legislature enacted 5/103-2.1, the purpose was to prevent defendants in homicide related cases from being convicted, in part or entirely, on hearsay evidence. This court acknowledged that the alleged inculpatory oral statement was taken in violation of 103-2.1, but that subsection (f) allowed it to be admissible. I disagreed with the court’s ruling, and respectfully, I still do."
    Is this the statute that was changed for the Drew Peterson case? How is that fair and balanced? Is Illinois the only state that allows this now?



Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.