tag:blogger.com,1999:blog-23754767143783743042024-03-14T03:12:07.473-05:00Chicago Criminal DefenseStories from my experiences as a solo practicing criminal defense attorney in Chicago, IL.Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.comBlogger142125tag:blogger.com,1999:blog-2375476714378374304.post-50950113131498860122013-07-14T07:12:00.000-05:002013-07-14T09:29:34.039-05:00The George Zimmerman VerdictGeorge Zimmerman shot and killed Trayvon Martin in February 2012. That is a sad fact. But, yet Zimmerman was found not guilty and people can’t seem to figure out why and are mislabeling the verdict as racist. That assertion is nonsense. It could have been argued as racist had Zimmerman never been charged. However, he was charged with 2nd Degree murder and faced up to life in prison had he been convicted. <br />
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Why Zimmerman wasn’t convicted was because the prosecution’s case was weak. Here is what happened. Zimmerman sees Martin and thinks he looks suspicious. Zimmerman is probably racially profiling Martin, which is deplorable but not illegal. Then, Zimmerman gets out of his car and follows Martin, though he’s advised not to. Again, that’s not illegal but doesn’t look good for Zimmerman.<br />
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At some point, verbal and then physical altercations erupt that are witnessed by no one. The State was unable to prove who the initial physical aggressor was. This might have been the most fatal flaw in their case. Evidence showed that Zimmerman’s nose was struck hard and the back of his head was cut at least twice. Thus, Martin obviously got some blows in. <br />
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But whom touched whom first? The State couldn’t prove this and in a self-defense case, this is an extremely important point. Also, no witness was able to positively identify the person heard yelling during the 911 call. There was opinion testimony but that’s it. Opinions. <br />
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The jury is left with a dead kid and the guy that shot him. But the state did not prove beyond a reasonable doubt that Zimmerman was not acting in lawful self-defense. And I imagine, that’s why Zimmerman was acquitted. <br />
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Zimmerman was wrong for profiling Martin and he was wrong for following him. And those acts might have been racist. But in no way was the verdict racist. The State had the opportunity to put on all of its evidence and the jury appeared to do a very thorough job of evaluating that evidence before reaching a verdict. <br />
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To suggest that the outcome of the Zimmerman trial was racist would mean that the prosecutor’s office conspired with the jurors to have Zimmerman acquitted and that’s simply nonsensical. A number of us may not like this verdict because Zimmerman was responsible for Martin’s death. And his acts that night may have been racially motivated. <br />
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The trial, however, was not racist and properly so. The jurors witnessed the evidence. Most of the people complaining about this verdict did not. For many, that a white (sort of white) man was acquitted for killing a young black man, just has to be racist. The actions that led to Martin’s death might have been racist, but the verdict was not and was the right verdict. <br />
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However, it’s easy to understand the confusion. The media portrayed Zimmerman as a racist and he might be. But that’s not what he was on trial for. This whole mess was simply sad. A young black man minding his own business was killed. And for that, people rightly felt his killer should be held accountable. However, the law often doesn’t fit the views of a society that’s been pumped full of media spun stories. <br />
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You can dislike the verdict as a society that rightfully felt Trayvon Martin deserved justice. I wanted Zimmerman convicted because I believe he was in the wrong. He should have stayed in his car and not followed Martin. But exiting his car is not illegal and the jury determined that him shooting Martin was also not illegal because the State of Florida simply could not prove beyond a reasonable doubt that Zimmerman did not act in self-defense and thus, reached the right verdict. <br />
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It’s understandable that many cannot get their heads around the verdict, but labeling it as racist is misguided. And it needs to stop. The Martin family lawyer, Benjamin Crump, in his post verdict statements, likened Martin to Medgar Evers and Emmet Till. I find that statement highly reckless and far off the mark. The only purpose that comment could have served was stirring up more racial discontent over the verdict. <br />
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George Zimmerman may be a racist, but it was a fair and just trial in the eyes of the law. Dislike of the verdict is understandable, but playing the race card isn't justified and only makes things worse. This mess was sensationalized due to race and I find that sad. Black man killed by non-black man and it looks like the killer is a racist, thus he must pay. As a society, we can feel that way and perhaps, rightly so.<br />
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In the courtroom, however, there is no media spin. There are only facts derived from proper evidence. And in the case of George Zimmerman, the prosecution simply did not have enough evidence to convict. It was an extremely fair trial that was judged quite well. The prosecution just didn't have a strong case and racism played no part in their failure to secure a conviction.<br />
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Had Trayvon Martin been white, George Zimmerman likely never gets charged. But the media spun this story as the racist murdering of a young black teenager, which sounds horrible and cannot be allowed by our society. If this trial stands for anything it's how dangerous and reckless the media is in its never ending hunt for stories that shock us and this one certainly did so. <br />
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Due to the media frenzy, Zimmerman was convicted before the trial began. Thousands gripped tightly to their beliefs about the case, only to have them shattered by the verdict. By swallowing the media spin, you've lost the ability to consider the case objectively, which is what jurors must do. Thus, it's no surprise that the legal verdict, which was inconsistent with the media's verdict, caused such an uproar.<br />
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The blame should focused on the media, not the State of Florida. <br />
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<br />Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com2tag:blogger.com,1999:blog-2375476714378374304.post-38962007435782541532013-06-23T09:52:00.001-05:002013-06-23T18:00:59.156-05:00Current Update-Future PlansI realize it's been a long time since I've updated this blog. In 2009, when I began blogging here, it wasn't to attract readers. At the time, I was new to the practice of criminal defense law here in Chicago and needed a venue to air out frustrations and thoughts. Thus, Chicago Criminal Defense was born.<br />
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In the beginning, I blogged regularly and my blogs tended to be lengthy. When necessary, I tried to explain complex legal concepts in a way that almost anyone could digest and understand. This was, in part, practice for speaking to jurors in courtrooms. I was trying to learn how to discuss the law without resorting to legalese. I was also developing myself as a writer, though it wasn't intentional nor was I aware that it was happening.<br />
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It's fair to say that in 2009 I was hungry and had a lot of passion for the work. However, in the spring of 2010 when my client was <a href="http://schantz-law.blogspot.com/2010/04/what-happened.html">convicted of murder</a> something in me changed. Then a couple months later, another client was <a href="http://schantz-law.blogspot.com/2010/07/when-incredible-is-credible.html">convicted of attempted murder</a>. By the end of 2010, I had begun to grow cynical about the work. In short, I was forced to admit the criminal justice system is horribly broken. I also was forced to admit that I had failed two clients in a time of desperate need. As a result, fueling cynicism consumed idealism and I hardened. <a href="http://schantz-law.blogspot.com/2010/11/keeping-faith.html">This</a> was a blog I wrote as I brooded over 2010. <br />
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In the summer of 2011, the <a href="http://schantz-law.blogspot.com/2011/09/belief-in-tough-case-trial.html">stunning verdict</a> in the Kenneth Green trial restored my faith in juries and myself as a <a href="http://schantz-law.blogspot.com/2011/09/closing-argument.html">trial attorney</a>. It wasn't that I felt I was deficient in 2010, but I did lose two big trials, which created sporadic palpable amounts of self-doubt in my abilities. Then in March 2012, I secured a <a href="http://schantz-law.blogspot.com/2012/03/closing-argument-from-cold-case-murder.html">not guilty verdict</a> for a client charged of murder in a cold case from 1984. <br />
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However, that same month, another client was convicted of attempted murder in one of the worst jury trials imaginable. The judge helped the prosecution through a lack of knowledge of the rules of evidence. Additionally, the judge refused to inquire about prosecutorial misconduct--communication with a juror--that my co-counsel witnessed during the trial. However, despite terrible judicial rulings, my closing argument made the case close.<br />
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On a Friday evening at 7:00 p.m., and after several hours of deliberation, the jury sent a note to the judge indicating they were deadlocked, were not going to be able to reach a verdict and requested to come back the next day. Over my objection, the judge ordered them to continue to deliberate. An hour later, the jury came back with a guilty verdict. I did not blog about this case because I was simply too pissed off. <br />
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In a way, that case was the last straw for me doing this job in Chicago. In the summer of 2012, I decided I needed a change of scenery and no longer wished to practice law. I can't fully explain it, but I began to feel unhealthy, though physical fitness is a cornerstone in my life. It was my mental health about which I worried. I was on medication for anxiety, depression and had to take pills to sleep. Chicago, and this job, began to make me feel sick inside. <br />
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But there was more to it. <br />
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Initially in 2009 and 2010, my business was a success and it was profitable. However, in 2011 and 2012, I saw final figures in the red and a resultant escalation in debt as I scrambled to keep things afloat. At the time, I couldn't understand why business went from great to poor. The eventual answer was marketing. My initial marketing plan worked until it didn't and I failed to understand why. If I made any errors in running the business, it was this.<br />
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That my fiscal problems coincided with my burn out was rather fortuitous. I could have borrowed money and revamped my marketing but I chose not to. It was time to move on.<br />
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I'm okay with how things have ended up. I had opportunities and accomplished things that changed the lives of people who I doubt will ever forget me (not that I care). I had a career case with Kenneth Green and knew that there would never be another case anywhere close to it. I represented about 300 people in Cook County felony courts. I won some trials. I lost some trials. I won some 4th Amendment motions. And I lost some. But I fought the good fight and am getting out on my terms--though aged considerably all around.<br />
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Moving forward, in the fall of 2012, I began freelance writing articles and ghost blogging on a variety of topics. The work doesn't pay well, but it does pay. In February and March of 2013, I wrote a novel titled, <i><a href="http://40calsayulita.blogspot.com/">.40 Cal Sayulita</a></i> and in May I wrote a second novel, <i>Concealed Carry</i>. I have a literary agent whose job it is to sell my books to a publisher; however, the book business moves at a turtle's pace. <br />
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I plan to leave Chicago in September for a far southern destination where I can enjoy wide open space, quietness, a slower pace and a greater sense of personal freedom. I believe I have what it takes to make a living as a novelist and found that I love writing fiction. Thus, herein lies my current focus.
If this doesn't pan out, however, I'll find something else to do. I really like
ranch work. I'd maybe like to teach some day. Maybe
I'll take up fishing. Maybe practice law in a different state. I really can't predict anything beyond this next year. <br />
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But for my experiences here in Chicago, I wouldn't have been able to write either novel nor the ones that will surely follow. After all, the first rule of writing is to write about that which you know.<br />
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I have always tried to blog in an honest, transparent way and I hope this last posting meets that standard. If you follow me on <a href="https://twitter.com/SchantzLaw">Twitter</a> or <a href="http://www.linkedin.com/pub/marcus-schantz/2/186/9ba">LinkedIn</a> you'll surely know when my writings are published. And I hope at least a couple of you will consider reading them. <br />
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Thanks for reading,<br />
<br />
M<br />
<br />Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com5tag:blogger.com,1999:blog-2375476714378374304.post-65429395137312273502012-03-27T20:53:00.000-05:002012-03-27T21:33:58.327-05:00Closing Argument From Cold Case Murder TrialAbout 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.
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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).<br />
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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 <i>well, that explains the DNA, why are you locked up? </i>He continued telling me the story.<br />
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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.<br />
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That's a nice theory. But just that.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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What happens next is anyone's guess.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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".<br />
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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.<br />
<blockquote>
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. </blockquote>
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<blockquote>
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 [ ]. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
<br />
<blockquote>
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.” </blockquote>
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<blockquote>
This is proof the detective testified inconsistently with the video evidence. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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.
</blockquote>
<br />
<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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.</blockquote>
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<blockquote>
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.</blockquote>
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<blockquote>
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 [ ]. </blockquote>
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<blockquote>
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. </blockquote>
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<blockquote>
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. </blockquote>
<br />
<blockquote>
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.
</blockquote>
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<blockquote>
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. </blockquote>
<br />
<blockquote>
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. </blockquote>
<br />
<blockquote>
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. </blockquote>
<br />
<blockquote>
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. </blockquote>
<br />
<blockquote>
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. </blockquote>
<br />
<blockquote>
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.</blockquote>
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
In these situations, it's the job of the defense attorney to step in and say "Wait a minute. Not so fast".<br />
<br />
And that's all I really did.<br />
<br />
<br />
<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
<blockquote>
</blockquote>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com3tag:blogger.com,1999:blog-2375476714378374304.post-45089654095129659312012-02-28T10:40:00.002-06:002012-02-28T10:50:09.616-06:00Why The Death Penalty Should Be BannedThe concept of being killed as a form of punishment has been around for a very long time. Individual societies have their own standards when it comes to deciding who deserves to be put to death and who deserves to live. In the United States, the death penalty is a state issue. Thus, each state can decide which factor(s) surrounding a crime have to be present before the death penalty option is triggered.<br />
<br />
I don't claim to know the very large case body that covers the death penalty in the United States. Since it's a state issue, there has to be a long history of jurisprudence state by state. However, there are a couple of very important federal cases to be aware of.<br />
<br />
In 1972, the U.S. Supreme Court banned the death penalty in <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=238">Furman v. Georgia</a>. In that case, the Supreme Court decided that imposition of the death penalty was cruel and unusual punishment in violation of the 8th and 14th Amendments. After this ruling, no state carried out a death sentence.<br />
<br />
Following the decision in <i>Furman</i>, several states amended their statues to comply with the court's holding. And after their laws were changed, they again began allowing the death penalty to be imposed, but there were no executions. But this wouldn't last long.<br />
<br />
In 1976, in <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=428&page=153">Gregg v. Georgia</a>, the Supreme Court decided that the death penalty wasn't <i>always</i> cruel and unusual punishment. Furthermore, the framers of the Constitution were ok with the death penalty, and it had been part of the American criminal justice system since the country was founded [read about <a href="http://en.wikipedia.org/wiki/Stare_decisis">Stare decisis</a>].<br />
<br />
The <i>Gregg</i> decision, like <i>Furman</i>, consolidated several cases all with the same issue. In <i>Gregg</i>, the Supreme Court held that the states of Georgia, Texas and Florida had constructed death penalty statutes that abided by the constitution. However, North Carolina and Louisiana's death penalty statutes still violated the rights of the condemned because they had certain crimes for which, if convicted, the death penalty was mandatory.<br />
<br />
It was also as a response to <i>Furman</i> that the bifurcated trial system came into existence for death cases. What this means was that a death case had two phases of the trial. The first was guilt/innocence (like a regular trial) and the second was for sentencing.<br />
<br />
Georgia, Texas and Florida shared some commonality when determining who could be eligible for execution. Killing a cop, hiring a hit man, or committing murder while trying to escape from prison triggered the death penalty option in all three states but in different ways.<br />
<br />
Following <i>Furman</i>, Texas narrowed its class of crimes for which the death penalty was an option. It created an objective guide for determining who could be charged for capitol murder, which simply means Texas intends to seek the death penalty at trial. Following a conviction for capitol murder, the jury then had to determine if special circumstances were present.<br />
<br />
These special circumstances were, whether the crime committed was deliberate and with the intent to kill, whether the defendant would be a threat to society in the future, and whether the defendant's response to any provocation was unreasonable. If the jury found all three special circumstances to be present, death was automatic. If any were missing, the sentence was life without parole.<br />
<br />
If you think about the special circumstances in the Texas model, it's easy to see why so many people have been sentenced to death and executed in that state. Special circumstance 1 is really a no-brainer. So is number 2. And number 3 wasn't applicable to all cases. Essentially, in capitol cases, all the state had to do was convince the jury the murder was deliberate with the intent to kill and the defendant would always remain a danger to society. This is a pretty low standard.<br />
<br />
To this day, Texas still uses the special circumstances inquiry to determine sentencing in capitol cases but one rule has changed. The original number 3 has been replaced by a circumstance pertaining to a defendant that was convicted along with at least one other defendant. The inquiry was whether or not the defendant actually caused the death or intended that death would incur when helping commit the crime.<br />
<br />
In Georgia, once a guilty verdict was rendered, the jury would then determine if the case was death penalty eligible by determining if any aggravating factors were present. An aggravating factor is simply something written into the law which could make a case death penalty eligible if present, such as killing a police officer. If the jury decided a defendant was eligible for the death penalty, it was allowed, but not required, to weigh any mitigating evidence against the aggravating factor(s).<br />
<br />
You might ask what does mitigation mean in this context? Mitigation in a death case is any reason why the newly convicted should be allowed to live as opposed to killed. Examples are but not limited to: if the defendant was a victim of extreme childhood abuse, had a history of mental illness, or really had been a good person but made a bad choice. But keep in mind, under the Georgia system, the jury did not have to consider any mitigating evidence, and the Supreme Court held this constitutional.<br />
<br />
The Florida system was similar to Georgia's, but in Florida, the jury <i>had</i> to consider any mitigating evidence. Another difference from Georgia was that the jury's determination about whether or not the defendant should be executed, was only a recommendation to the judge, who ultimately sentenced the defendant.<br />
<br />
Since 1976, Texas has executed 478 convicts. Next in line is Virginia with 109 executions. In 10th place is South Carolina with 43 executions. In order, the top 10 states in total executions are Texas, Virginia, Oklahoma, Florida, Missouri, Alabama, Georgia, Ohio, North Carolina and South Carolina. Except for Missouri and Ohio, all of these states were part of the confederacy during the civil war.<br />
<br />
Those states, by and large, have disproportionately executed blacks and arguably for racial reasons. Our country as a whole has a very disturbing history when it comes to racism. But it has always been worse in the south. I can say with 100% certainty, that racism is still very alive in the city of Chicago. But that's for another post.<br />
<br />
The reasons for opposition and support of the death penalty varies greatly. Some see executions as immoral. Former Supreme Court justices Brennan and Marshall felt that all executions violated the constitution. Some oppose for religious reasons but some also support for religious reasons. But almost everyone has an opinion on this topic, much like abortion.<br />
<br />
Prior to the last few years, I hadn't given this topic much thought. In other words, I hadn't done any critical thinking on my own. I lived in Texas for 4 years and executions were so regular, they never made the news, unless for some reason, the execution was stayed. But I was in college at the time. Thus, I was quite removed from this issue.<br />
<br />
However, since returning to Illinois in 2002 to attend law school, things have happened that have made me acutely aware of the death penalty. In 2000, George Ryan, then governor of Illinois, put a moratorium on executions in Illinois. Since 1976, Illinois has executed 12 people on death row. However, 20 people were actually released from death row for various reasons. Governor Ryan was faced with the fact that the death penalty system in Illinois was horribly broken. He called a time-out and declared there would be no more executions until the system was fixed.<br />
<br />
Ryan's interest in Illinois' death penalty largely arose over the case of Anthony Porter, who spent 15 years on Illinois' death row. A group of journalism students from Northwestern University uncovered evidence that proved Porter's innocence. He was eventually exonerated and released from prison and another person ended up confessing to the crime for which Porter had been convicted.<br />
<br />
The fact that a group of undergrads righted this wrong was obviously troubling. The entire Illinois criminal justice system, which is supposed to keep the innocent from being convicted (let alone being sentenced to death) had allowed this to happen. From the local police department to the state's attorney's office to the defense attorneys to the trial judge to the appellate court and to the Illinois supreme court, this innocent man was scheduled to be killed.<br />
<br />
No matter your view on the death penalty, I don't think anyone is comfortable with the idea of an innocent person being executed. Governor Ryan convened a committee to look into the matter. The committee uncovered significant problems and recommended changes. But the changes were never implemented. In response, 2 days before leaving office in January 2003, Ryan commuted everyone's sentence on death row to life without parole.<br />
<br />
However, the death penalty was still in Illinois law. Thus, state's attorney's offices throughout the state kept seeking the death penalty and, in some cases, got it. In fact 15 people were on death row when Governor Quinn signed into the law the death penalty ban in March 2011.<br />
<br />
My objection to the death penalty isn't on moral or religious grounds. I didn't have a problem with John Wayne Gacy being executed. My objection is simply this: the death penalty is an extreme punishment for which no margin of error can be allowed to exist in its imposition and it's been proven time after time to be subject to just that, or worse.<br />
<br />
It's one thing for an eyewitness to mistake identification. That's bad enough. But when the police and/or the prosecutors break the law in bringing about <i>any</i> conviction and especially one that ultimately results in a death penalty being imposed, that's something that we cannot tolerate.<br />
<br />
Police and prosecutorial misconduct are not a rare or isolated phenomena. In fact, it's a common occurrence. In death cases, it's just more magnified because it seeds the idea that someone was wrongfully convicted and sentenced to death. I think this would bother anyone if confronted.<br />
<br />
If you want to learn about a case of extreme police and prosecutorial misconduct, <a href="http://www.law.northwestern.edu/wrongfulconvictions/exonerations/txAdamsSummary.html">read</a> about <a href="http://en.wikipedia.org/wiki/Randall_Dale_Adams">Randall Adams</a>. Adams was convicted and sentenced to death in Texas in 1977 for the murder of a police officer. The U.S. Supreme Court later ruled that jury selection in his case violated his rights.<br />
<br />
Instead of re-trying Adams, the Dallas district attorney convinced the Texas governor to commute Adam's death sentence to life without parole. Clearly Adams didn't like this and appealed to the Texas Criminal Court of Appeals (the highest state court in Texas), who ruled since the Governor had commuted the death sentence to life, there was no longer any error. I can't say that I really understand the rationale behind this decision.<br />
<br />
Adams later filed a state <a href="http://en.wikipedia.org/wiki/Habeas_corpus"><i>habeas</i></a> petition again with the Texas Criminal Court of Appeals. This time something didn't look right to the justices and they ordered that the trial court conduct a hearing on the petition and make findings of fact. This time, however, it was a different judge at the trial court level. In 1989, based on the factual findings from the <i>habeas</i> hearing, the Texas Criminal Court of Appeals <a href="http://www.schafferfirm.com/Cases/Ex_parte_Adams.pdf">reversed</a> the conviction and after 12 years, Adams was freed.<br />
<br />
The rationale behind the reversal was largely, if not entirely, based on extreme prosecutorial and police misconduct. The court determined that the prosecutor had withheld key evidence from the defense, suborned perjury, and lied to the trial judge. Pretty bad stuff. The prosecutor left the Dallas D.A.'s office in 1981 and set up a private practice in Dallas. However, he testified under oath at the <i>habeas</i> hearing, where he continued to deny any wrongdoing. The appeals court didn't buy it, however.<br />
<br />
On top of the shenanigans the prosecutor pulled in order to convict Adams and get him sentenced to death, he goes into court later as a witness in the <i>habeas</i> hearing and according to the findings of the trial court, committed perjury. According to the Texas State Bar, he is still practicing in Texas and has never had any disciplinary action taken against him.<br />
<br />
There was a documentary made about the Adams case while he was still in prison called "<a href="http://en.wikipedia.org/wiki/The_Thin_Blue_Line_(documentary)">The Thin Blue Line</a>". <a href="http://en.wikipedia.org/wiki/Errol_Morris">Errol Morris</a> created the film and it was released in 1988. It's a very engaging piece of film and I'd recommend it to anyone interested in the death penalty and/or other issues mentioned in this posting.<br />
<br />
Adams is but one case. But since 1976, there have been 140 death row exonerations in 26 states. Those are 140 people that were improperly sentenced to death. This doesn't mean that <i>only</i> 140 people were wrongfully sentenced. Who knows how many others were already executed or how many are still on death row that are actually innocent. But the point is that based on what we already know to be true, innocent people have been sentenced to death and some even executed. Thus, the death penalty is not perfect and absolutely must be.<br />
<br />
However as long as humans are involved, it will always be subject to error both unintentional and intentional. How would you feel if you were sitting on death row for something you didn't do? And how angry would you be if the government had violated your rights to put you there? I can't really imagine what that would feel like.<br />
<br />
When it comes to innate American concepts such as liberty, fairness, and due process, the constitution is a brilliant document. Unfortunately, since it was adopted and put into use over 200 years ago, much of it that deals with criminal justice, just looks good on paper these days. I have handled too many cases where the constitutional rights of my client simply vanished due to police and/or prosecutorial action or inaction. <br />
<br />
The government should be the body most concerned with abiding by the constitution. But too often it's the body that cares the least and at times, acts as if it doesn't even exist. A government founded upon a constitution can never be just if it doesn't follow it. We citizens have to follow the law at all times. We are not able to pick and choose when we want to. Or what laws we want to obey.<br />
<br />
If we don't follow the law, we are subject to prosecution. This is where the criminal justice system lies. And sadly, we are all subject to what happened to Randall Adams. But what about when the government breaks the law when we are prosecuted? Well, they are mostly immune because of their position and rarely are punished. But at the end of their violations of individual rights are innocent people that have been convicted and, in some cases, executed.<br />
<br />
The constitution was created to prevent a tyrannical government. And if followed, it can accomplish just that. But if not followed, the thing that it was written to prevent, can run wild and unchecked.<br />
<br />
Tyranny. Bad for everyone except for the tyrannical.<br />
<br />
<br />
<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
<br />
<a href="https://twitter.com/#!/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com3tag:blogger.com,1999:blog-2375476714378374304.post-33743769988102718792012-02-22T15:29:00.002-06:002012-02-22T15:29:31.186-06:00Playing Catch UpJust yesterday, I realized I hadn't written a blog post since September. Every now and then, I do a Google search of my name just to make sure nothing false has been written about me. I am not paranoid, but an attorney is only as good as his reputation. To date, there's been no internet grenades thrown my way. I do always find it odd the corners of the internet where my name or something I've written pops up.<br />
<br />
While Google hunting myself, I did find that I was <a href="http://blog.simplejustice.us/2011/12/19/sticky-nominations-open-for-third-annual-best-criminal-law-blawg-post.aspx">mentioned</a> on Scott Greenfield's blog, Simple Justice. Apparently I was nominated in December of 2011 for <a href="http://schantz-law.blogspot.com/2011/09/belief-in-tough-case-trial.html">Criminal Law Blog Post of The Year</a> by Mark Draughn of <a href="http://www.windypundit.com/">Windypunidt</a>. I don't know Mark personally. We've never met. Somehow last year he learned of my blog and threw me a salute on his blog. I was not aware of this until I was informed by a friend. I know I sent Mark some appreciation for his kind words.<br />
<br />
Scott Greenfield goes on to spread some niceness my way when he discusses some of the 2011 <a href="http://blog.simplejustice.us/2012/01/01/best-criminal-law-blawg-post-2011.aspx">nominations</a>. I like that Scott also considers 40 years of age to be 'young'. I also appreciated that I was considered for the award. However, the winner was Mark Bennett, a Houston Criminal Defense Attorney. <a href="http://blog.bennettandbennett.com/2011/01/schadenfreude-irony-and-the-defense-function.html">Here</a> is the winning blog post. I've never been much for reading blogs of any kind. I simply don't have the time. Even my <a href="https://twitter.com/#!/SchantzLaw">Twitter</a> activity has been reduced significantly.<br />
<br />
In part, I wish I could blame my busyness on work. But it wouldn't be true. I am busy with life in general. My case load is actually pretty light and has been for over a year. However, the cases I do have are not simple guilty pleas waiting to happen. Nope. I remember those days when most clients had crap cases and chose to plead at the arraignment. I didn't earn a lot per case, but I had a ton of them.<br />
<br />
For whatever reasons, at some point I stopped getting hired to negotiate plea deals but was actually retained to litigate cases that needed it. I remember back in the spring of 2009 (my first year doing this), someone called me on the phone and said "yeah, I heard you're a good 'cop-out' lawyer." I think I was a bit offended, but at the time, it was true. I had very litigation experience. I didn't conduct my first suppression hearing until September of 2009 and didn't try my first case until December 2009.<br />
<br />
But what a year 2009 was. In early 2009, I was doing misdemeanor cases where I would go to court, the cops wouldn't show up, and the case would get tossed. To the worried client, I seemed like this awesome attorney and would get told as much. But inside, I sort of knew it was smoke and mirrors. To my credit, I never puffed any of that. I never told a client "see, I got your case dismissed. Love me now." No, I would just say "thank you" and walk away. I was just filling a suit and I knew it. But I also realized at the time, I couldn't do much more.<br />
<br />
I spent so much time in the fall of 2008 and all of 2009 sitting in court and watching other attorneys conduct hearings and trials. It wasn't hard to figure out who was good and who sucked. I spent most of the time watching the jurors, noting what held their attention and what put them to sleep. I befriended the attorneys I felt were the best. And I am still friendly with them (not like it's been ages).<br />
<br />
Though I hadn't tried a criminal case, something innate led me to believe that's what I was supposed to do. Something told me that I would be good in front of a jury. And just 11 months into my criminal practice, I got my first shot at a jury. My client was charged with a Class X felony (6-30 years). I liked the case. I felt my client would make a very good witness. And I had enough police mess ups on the table with which to design some pretty effective cross.<br />
<br />
Counting the day we picked the jury, it took 2 days. The jury came back in about an hour with a 'not guilty' verdict. My client cried. His mother cried. Back in the lockup, my client said "I love you". And that night, after sitting in the county jail for 5 months away from his fiancee and their three children, he went home. I am sure they all had a very nice Christmas.<br />
<br />
Some might think I was wrong to take that case and they are welcome to their opinion. However, I wouldn't have taken that case to trial unless I felt I was fully capable of living up to my professional and ethical duties to my client. My ass might be dumb. But I ain't a dumb ass. I felt like I was ready. And I did it. All guts and glory. A little Patton-like perhaps. I never questioned my ability once and not out of arrogance. You see, I am my own worse critic. It keeps me in check.<br />
<br />
I left the courthouse that night with a feeling like I was floating. And when I walked back into the courthouse the next morning, I felt like I was finally part of the club. In other words, my cherry had been popped. I was now one of them. One of the felony trial attorneys that have graced, or in some cases, disgraced what's locally known as 26th & California.<br />
<br />
That building has a very long history. I admit when I first stepped inside to handle my first felony case, I was a bit awe struck. Somehow I had romanticized the Cook County main criminal courthouse. I actually wanted nothing more than to actually practice in that building. What's that saying...be careful what you wish for....Amen.<br />
<br />
These days I see that old courthouse like a black hole that sucks in attorneys and never lets them out. It would be appropriate for a cemetery to be on the grounds where dead attorneys are buried. Yes, I am serious. On the right (or wrong) day, that place takes on a very dark character where it just feels nasty to be inside of it.<br />
<br />
But back in the summer of 2009, Kenny Green came into my life. It was my blog posting about his case that was nominated for blog post of the year. When hired, everyone knew I hadn't tried a criminal case. No experience. But apparently I had something equally valuable to families: belief. The fact I was willing to take that case played a role as well. However, I don't think it was a large role. After meeting with Kenny and conducting some research into the case, I met with his family in the law library in the Court's Administration building that's adjacent to the old courthouse.<br />
<br />
His family all knew what really happened and that he was not the thug that the media was describing. I am sure their biggest concern was whether or not someone else would believe what they knew to be true. At the time, I wasn't consciously aware of this. Apparently, I said the right things, because despite my lack of experience, they hired me to take Kenny's case. And Kenny, himself, wanted me as his attorney.<br />
<br />
My unwavering belief in that case played a substantial part in Kenny's eventual acquittal. Of course, by the time the trial came around, 2 years later, I was no longer a total rookie. I am not going to claim I am some super duper experienced trial lawyer that has nothing but sage advice to shell out.<br />
<br />
But I know how to try a case. And as it turned out, I think I am pretty good in front a jury. To contradict myself a little, there's two cardinal rules I follow when it comes to juries: never give them a reason to dislike me and never lose my credibility with them. It won't necessarily seal your client's fate, but it damn well might.<br />
<br />
On that Friday afternoon when Kenny was acquitted, he told me he loved me. Knowing him like I do, he wasn't surprised at the verdict. For he knew he had done nothing wrong. He expected the right verdict to be given. Once upon a time, I was that naive too.<br />
<br />
Kenny will never know the personal, mental hell his case put me through. He will never know how many nights I had trouble sleeping because I was thinking about his case. He won't know how frightened I was before that trial. He won't know of all of the anxiety and stress I took on by handling his case. He won't know that just a random thought about his case would cause my pulse to quicken, my blood pressure to rise, and make me feel like immediately vomiting. I've learned that all of that ickyness comes with the job. Or at least in my case it does.<br />
<br />
After I walked out of that courtroom, his immediate family was in the hallway. His mother was a little teary eyed. I immediately broke down and cried. All of the emotion that had been built up in me was suddenly released. An emotional orgasm, if you will. All I could say was "thank you for believing in me and trusting me to handle Kenny's case." While hugging me, she whispered into my ear "Marcus, we always believed in you." Of course, that just brought more tears, but in a very good way.<br />
<br />
I learned a lot through that case. I grew as a person and as an attorney. I realized that some fear is good. But too much fear can cripple. And I also learned that the belief stuff runs in both directions. There's nothing wrong with being an attorney with a heart.<br />
<br />
That I regularly show so much of mine has bode well with some clients. Just recently one said "I'll say one thing about you Mark (that's what he calls me and I let him), you practice with compassion. You're not like most lawyers in this business."<br />
<br />
Unfortunately, in this business, my compassionate side causes me a lot of grief. When I fail to deliver justice to a client so desperately in need of it, I always feel terrible. Despite all of the bullshit I see in the Chicago criminal justice system, there's still a palpable amount of idealism inside. Not as much as my law school days, but just enough that it still bothers me that our system is horribly broken and that, by and large, black and Hispanic citizens of Chicago don't have the same constitutional protections as I do. In fact, that still really, really, really pisses me off.<br />
<br />
It saddens me that Kenny's trial may end up being the pinnacle of my career as a criminal defense lawyer. It was an extraordinary case. One of a kind. I was extremely invested in it. And there was a lot at stake. I was so completely unaware of that cases' magnitude, that the post-trial reactions, both good and bad, were hard to grasp and still are. I had a client with a case that needed to be tried in the right way. That's how I looked at it.<br />
<br />
I hear from Kenny from time to time. Not too long ago, I got a text message from him that read "Happy New Year my hero!" I don't think of myself as a hero. I did my job. As expected, not much has really changed. I didn't start waking up wearing a cape. I had a nice weekend after that trial. But Monday came and it was business as usual. I won a suppression motion that week. And then lost one the following week. Up and down. Up and down. For someone that treasures stability and tranquility, I picked the worst job imaginable. Maybe I am a dumb ass, after all.<br />
<br />
<i>I want to take a few lines to thank a lot of people in no particular order. First off, thanks to DawnMarie White for leaving a husband in Indianapolis for a week to try Kenny's case with me pro hac vice and for damn near free. I couldn't have done it without you. Thanks to my dear friend, Annie, that stayed with me every night of the trial, brought DawnMarie and I dinner, did my laundry, went to the office store to pick up supplies for us, and kept me calm. Thanks to Mark Bennett for calling me out of the blue the day I was interviewed for the 6:00 news, and giving me advice on how to answer the reporter's questions. Thanks to all of my fellow CDL's on Twitter that shared in that win. Thanks to the bloggers that picked up this story and published it. Thanks to everyone that commented or wrote kind words. And thanks to everyone else fighting the good fight in a tireless effort to keep the constitution alive.</i><br />
<div style="text-align: center;"><b><u>Epilogue</u></b><i> </i></div><br />
It always amazes me at how unaware I often am of myself. A couple weeks back, I was headed to court to litigate a motion. As usual, I was nervous. I always am. It's one of the worst parts of this job. It messes with my stomach. It jacks up my nerves. It's just not something that's really nice to experience.<br />
<br />
I wrote my girlfriend a text message, expressing my nervousness and anxiety. Her response really hit me in the forehead: "You get that way because you care. Your clients are lucky to have you." That's great sentiment and all, but is it true? I think so.<br />
<br />
I wrote back: "The only alternative is to just go numb and not give a shit. But then I'd really suck at this job."<br />
<br />
In a nutshell, that's who I am. All I've ever been. And all I ever will be.<br />
<br />
I'm cool with that.<br />
<br />
<a href="http://www.schantz-law.com/">www.schantz-law.com</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com3tag:blogger.com,1999:blog-2375476714378374304.post-48388895553106592062011-09-07T17:36:00.000-05:002013-02-01T22:58:44.906-06:00Belief In a Tough Case & The TrialIn early August 2009, I was called by a young woman. Her brother was in the county jail and needed a lawyer. At this point, there's nothing unusual about this caller and the problem. I don't get many personal phone calls, so when my phone rings, it's typically someone with a loved one in jail. "What kind of case does he have?" I asked. "He shot two police officers," she answered.<br />
<br />
This was no longer a typical phone call. I think I remember sitting down. <br />
<br />
I wasn't the first attorney she called. It seems the other lawyers simply wanted nothing to do with this case or wanted an obscene amount of money. I was told that the family didn't have a lot of money, but clearly had a pretty big problem. This phone call came pretty early in my criminal practice. At the time, this case was beyond anything I had handled. But I admit, I was intrigued. <br />
<br />
I asked if she knew anything about the case. She told me what she knew, which made me really interested. I told the caller I would go to the county jail and meet with her brother. I looked up her brother's information on the sheriff's website. I quickly learned in which division he was being kept.<br />
<br />
Then I Googled his name to see if there was a news story. There were several. <a href="http://archive.chicagobreakingnews.com/2009/07/man-charged-in-shooting-of-2-police-officers.html">Here</a> is one of them and probably the one I read first. Not that I doubted what the caller told me, but reading this made me realize how serious the situation was. A cop shooter? Christ. And I admit the <a href="http://www.nbcchicago.com/blogs/localleads/2-Charged-After-Chicago-Police-Officers-Shot-Shooting.html">picture</a> of Kenneth Green didn't make a good impression. He looked mean. He looked how I imagined someone that shot cops would look.<br />
<br />
Probably the next morning, I drove to Division IX of the Cook County Jail. I showed my credentials at the desk and requested to meet with Mr. Green. After a cursory pat-down, I was taken inside the jail and escorted to the approximate location of Mr. Green's deck. Of all of the divisions in the Cook County Jail, Division IX creeps me out the most. You have to go underground to get to it and it reminds me of <i>The Silence of The Lambs</i>, where they kept Hannibal Lecter locked up.<br />
<br />
I was lead to a room upstairs. It had a plastic table and two plastic chairs inside of it. That was it. I saw down at the table, turned to a fresh page on my legal pad and wrote "Kenneth Green, Div IX August 5, 2009" centered on the top line.<br />
<br />
A couple of minutes past. I sat there staring at the blank sheet of paper while wondering who was about to walk into that room. Would it be some would be cop-killing thug? I told myself even before I left for the jail that day that if Mr. Green had really tried to kill a couple of cops, there was no way I was taking the case. No way. No way. No way. Not that I don't believe such a person is entitled to competent legal representation. It just wasn't the type of person I wanted to represent. <br />
<br />
Eventually Mr. Green walked in. I stood up to shake his hand. I quickly told him my name, that I was a lawyer and his sister called me. He said "thanks for coming to see me, I'm Kenny." He was taller than myself, standing almost 6 feet. He was thin. Not sickly thin, but definitely not the body of someone who had overeaten regularly. <br />
<br />
We sat down to discuss his case. It was pretty clear that he had grown up in the streets. But he was nothing like his picture made him appear to be. I detected no meanness. And he was certainly no thug. He hadn't been convicted of anything, I was told. I believed him. I work with a lot of criminals. Kenny wasn't a criminal. Rough around the edges, perhaps. But nothing more than that.<br />
<br />
By the time Kenny finished telling me what happened, I knew I wanted his case. The story in the media was incorrect, which I was coming to learn was pretty typical when it came to crime reporting. For several reasons, I believed every word that Kenny told me. It just made sense. There was nothing bizarre about it. But the question remained: would the physical evidence support his version of the story? I would have to take the case to find out. And so I did.<br />
<br />
The arraignment was the first time I appeared in court on behalf of my new client. Even though I knew this was an extraordinary case, two things happened at the arraignment that really drove this point home. The first thing that happened was that the prosecutors introduced themselves to me. The only thing out of the ordinary with these guys is that they were very senior in the State's Attorney's office. They were so senior, I had never seen them in a courtroom. They were big wigs and both of them taller than myself.<br />
<br />
The second thing that happened is when the judge handed me the 48 count indictment. 48 counts? Really? That indictment was so thick, one of those giant industrial sized staplers had to be used to fasten it all together. The size of the staple was enormous. But I arraigned Kenny like he was any other client, "not guilty to all counts."<br />
<br />
When I walked out of the courtroom that morning I knew I was in neck deep. Actually, at the point, I was probably in way over my head. I hadn't tried a case yet. You may ask if it was smart or even professional for me to take the case. All I can say is that Kenny's family knew I was inexperienced and so did Kenny. But they also knew I believed in the case. Also, I was the only attorney they could afford. Since they didn't want Kenny to be represented by a PD, I was the only option. In reality, I priced myself so they could afford me. I wanted that case. <br />
<br />
Even though at the time, I knew I was short on experience, I never doubted my abilities as an attorney. I knew it would be a long time before the case went to trial and by the time it did, I would have trial work under my belt. That assumption ended up being correct.<br />
<br />
Every month when the case came up for discovery status, I got more and more documents. By the time discovery was complete, this file would take an entire banker's box to contain it. For a Chicago criminal case, that's a big file. Take my word for it.<br />
<br />
And every month, I saw the same two prosecutors. I got to know them and even grew to like one of them a lot. The other one was eventually demoted within his office and was replaced on my case by another guy I also grew to like. As it turned out, we had a somewhat common military background. But I think the State kept thinking I was going to ask for a plea deal. I don't think anyone but myself, my client, and his family really believed this case would ever see a trial.<br />
<br />
I began preparing this case for trial on day one. I guess in the long run, that gave me an advantage. And my theory of the case never changed: my client didn't know he was shooting at police officers and the drugs found in his bedroom belonged to his brother. I would ultimately have to teach a jury that this wasn't just a theory but was, in fact, the truth. If I failed in doing so, Kenny could be gone for life.<br />
<br />
I never lost sight of what was at stake. But at no time did I ever think about seeking a plea deal. Why? Because I believed in the case. However, because of how people think, I knew it would be a tough sell to a jury. But I also believed in my ability to tell Kenny's story in a way a jury could understand. Or so I'd hoped. Also at no time did Kenny ever mention a deal. He wanted a trial. He wanted to take the stand and tell a jury what happened. <br />
<br />
In the late fall of 2009, I went to see where this incident took place. I took my camera and measuring tape. I took pictures and measurements. I also made sketches. While I was inside of the apartment, my passenger side window was shattered with half of a brick and my GPS was stolen. This had been the first time I ever did not put my GPS in my glove box. I mean the absolute first. I was slipping and I got caught. I blame that one on myself.<br />
<br />
This case changed judges three times due to administrative reasons in our courthouse. This was going to be a jury trial from day 1. I didn't want to put a judge in the position of having to find someone who shot 2 cops <i>not guilty.</i> No, a jury trial was the only option. I just needed a good jury. I needed jurors who would do their job.<br />
<br />
It took well over a year for the State to complete discovery. The Independent Police Review Authority (IPRA) conducted an investigation of this case as they do in all situations where the police discharge a firearm. This investigation delayed the discovery process. I also used the Freedom of Information Act (FOIA) to obtain Chicago Police Department documents that pertained to search warrants, from obtaining them through post-execution. <br />
<br />
In the spring and summer of 2010, three off-duty Chicago Police officers were shot and killed. It was obvious a trial even remotely close to those events time-wise was a bad idea. Thus, I continued to take my time but didn't intentionally delay.<br />
<br />
The case was originally set for trial in April 2011, but the State wasn't going to be ready. It was rescheduled for June 2011, but I couldn't get ready. The trial was again rescheduled for August 2011. The judge firmly said "unless one of the attorneys dies, this trial is going in August." I took her for her word.<br />
<br />
I also knew I was going to need help with this trial. I needed a 2nd or 3rd year law student at a minimum. There was going to be a lot of exhibits and I wasn't going to have time to keep track of them. I was also going to need help during final trial preparation. I needed someone to constantly test and challenge my theory of the case as we discussed the evidence. <br />
<br />
I had a 3L that said she wanted to help. She would have been allowed to sit at counsel's table during the entire trial. It would have been great experience but she pulled out suddenly 2 weeks before the trial. Shit. I started to get into panic mode. In a last ditch effort I sent out a Tweet seeking help from a law student. I said I would pay.<br />
<br />
I will admit that I was freaked out about this trial that was looming in the near future. Every day I got deeper in August, the trial got closer. Even though I was very confident in my case, I was scared. I was lining up against numerous members of the Chicago Police Department and two very senior prosecutors. I didn't even have a law clerk. But I did have a very powerful ally, the truth.<br />
<br />
The trial was scheduled for August 22, 2011. On August 12, I left town for a long weekend. I needed to get away from Chicago and let my head clear before this trial. While I was out of town, I was contacted via email from a young lawyer from Indianapolis that I had some familiarity with through Twitter. She wanted to help with this trial. But there was a problem. I could not afford to pay her an attorney's wage for her work. She didn't care. I told her we would talk when I returned to Chicago.<br />
<br />
When we spoke, I gave her a brief rundown of the facts of the case and my theory. I told her that I could pay her very little and she agreed. There were friends in Chicago she could stay with while here. And she really, really wanted to help with this trial. It wasn't hard to see why. These types of cases don't come along too often and she wanted in on it. Perfect.<br />
<br />
On Saturday August 20, 2011 I had a 20 mile run that morning and ran sub 7:00 miles the whole way. Post-run found me relaxed and ready to do final prep work. My co-counsel, DawnMarie White, arrived Saturday afternoon having made the drive from Indianapolis late morning. She parked her car at her friend's house. I gave her directions to get to the nearest train station, got her on the train, and told her at which stop to get off. She texted me when she was close and I walked to the train station to meet her.<br />
<br />
At the train station we exchanged hellos and a handshake. We made the 10 minute walk back to my loft and immediately went to work. I had the entire file spread out on the cabinet island counter. Earlier that week, I made a 3 page "To Do" list. I showed her the list and we began work.<br />
<br />
It's amazing but as soon as DawnMarie arrived on Saturday, I felt much better about the task at hand. I think just having someone next to me as we went into battle got my head into a better place. I had books open all over my loft. I had to look up some rules of evidence in anticipation of objections I knew were going to come. I looked through the Bible that is the <i>Trial Handbook for Illinois Lawyers</i> (Criminal Edition). This is an absolute must have if you try cases in Illinois. A must have. All three volumes of the <i>Illinois Pattern Jury Instructions</i> (Criminal) were open and scattered about my place. <br />
<br />
Fortunately, the actual case file was well organized. All of the discovery was broken down into manila folders. The FOIA documents were still in the envelope in which they were mailed. And the IPRA documents were already broken down by police officer and witness.<br />
<br />
I originally planned to call 6 witnesses during my case in chief. I gave DawnMarie the statements from 4 of them. They had all given statements to IPRA. But my client's mother had also given a handwritten statement to detectives and a prosecutor on the day of the incident since she was arrested too. The mother had also testified before the Grand Jury. Her story never wavered once.<br />
<br />
I wanted DawnMarie to learn what the 4 witnesses had already said and draft direct examination questions to elicit the same version of the story they already told. At that time, I hadn't thought about having her cross-examine any police officers. She was to help me prepare, keep track of exhibits, be my 2nd set of eyes and ears, and do the direct of our 4 female witnesses.<br />
<br />
On Sunday we walked over to a nearby Fed-Ex/Kinos and made duplicate trial notebooks. They were large, filling a 3" three ring binder. Back at my place, we went through the police officers that were likely to testify. Unlike most cases, we had police testimony to the IPRA investigator. Thus, going into trial, we knew how they were going to tell the story. And therefore, we knew what facts we could get from each officer that would advance our theory of the case.<br />
<br />
Separately, DawnMarie and myself made hand-written notes about each officer's likely testimony that would help us. From these notes, cross-examination questions/outlines would be prepared. We parted ways on Sunday evening pretty early, but both had work to do that night.<br />
<br />
On Monday morning we went to court. Here is how we looked.<br />
<br />
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<br />
Monday afternoon we finally got to pick our jury. Voir dire is done pretty efficiently around here. Both sides are allowed to ask questions of the venire. But we are not allowed to pre-try the case. In other words, we can't ask them questions about issues likely to surface during trial. What's that leave us with?<br />
<br />
I was never taught how to pick a jury. Or what questions to ask during voir dire. The judge asks each panel member separately a number of questions, such as occupation, marital status, children, know any cops or lawyers, been a victim of a crime (or anyone in their family), and so on. It gives us a decent idea of who they are. But keep in mind, our jury pool extends to the entire county of Cook. Thus, a lot of potential jurors are from the suburbs and usually are white. DawnMarie and I had discussed who our ideal jurors would be. But I believe voir dire is more about dismissing people I don't want on the jury as opposed to selecting those I do want on it. <br />
<br />
When I get up to speak to the venire, I go through all of them one at a time and ask a question that digs a little deeper into one the judge already asked. For instance, if a potential juror told the judge he's a sports fan, I will follow up and ask him about specific sports and teams. I must have asked at least 6 this last time around, Cubs or Sox? I usually also ask if they follow the news and from where they get their information. I ask them if they read books. Where they go on vacation.<br />
<br />
The importance of these questions isn't really the answer. What I am looking for is how that person interacts with me. Are they speaking to me willingly? Are they smiling? Are they relaxed? What's their body language look like? Typically, anyone that's cagey with me or doesn't appear to like me will be removed.<br />
<br />
I can't figure out why, but the prosecutors ask very few questions of the panel individually. And I can't say the questions they do ask make much sense. I really don't think they are ever taught what to ask. In at least 2 jury trials, the prosecutors did not question the panel at all. A very skilled trial attorney once told me that you start to win your case during voire dire. I think he's right. You cannot put a price on having a jury that likes me. From that point forward, I do everything I can to not give them a reason to suddenly stop liking me.<br />
<br />
Voire dire in this case took about 4-5 hours. We had our 12 and 2 alternates. Of the 12 there was 1 early 30's black male. And 1 early 30's highly educated Hispanic female. The remaining 10 were white and mostly from the suburbs, about half male, half female. But most of them had families. Having a family is one thing we wanted our ideal juror to have. <br />
<br />
I spent most of Monday evening writing my opening statement. But I didn't spend much time preparing cross-examination. This would bite me in the ass on Tuesday in a way I couldn't have predicted.<br />
<br />
Tuesday morning we gave opening statements. I was pretty relaxed and looked every juror in the eyes several times each. I had their attention. Score. I spoke for about 15 minutes and told them the story through my client's eyes, attempting to put them in his shoes before they heard any evidence. I told them what to look for during the trial. And finally, I told them that at the close of evidence they would, by using their common sense, conclude my client was not guilty on all counts.<br />
<br />
Unfortunately, I never know what order the State will call its witnesses. And they just happened to call an Officer I wasn't really ready to cross-examine. Shit. The direct lasted until the lunch break. Thank God. During lunch I never left the courtroom. Instead I sat there panic-stricken trying to put together a cross-examination. My co-counsel never left my side and attempted to help but I was a bit of a mess. Fuck. Fuck. Fuck. Yeah, I said just that several times. Also as luck would have it, I began to feel physically ill. <br />
<br />
By the time court resumed after lunch, I had some cross but it was not in order but rather scattered across 6 pages in my legal pad. Less than 2 minutes into my cross, I began to sweat heavily. I was extremely warm. I felt faint. I felt sick to my stomach. And my thinking was foggy. At some point during my cross, we had to have a sidebar in chambers. After the sidebar, I was the last one out just before the judge. She told me I looked nervous. In truth, I was nervous but also wanted to vomit and jump in a pool.<br />
<br />
In total, my cross took maybe 20-30 minutes. It was disjointed, fragmented, sloppy, and just felt awful. It was the worst 20-30 in my career as an attorney. When I sat down, DawnMarie could now clearly see I was sweating heavily. She pulled out a travel size package of tissues and handed it to me. I must have gone through a dozen of them wiping the sweat from my face. I could feel my that dress shirt was soaked.<br />
<br />
During the next break, I went into the bathroom right outside the courtroom and threw up. I hadn't eaten anything so it was that nasty stomach juice type of vomit. But I felt a little better. During the direct examination of the State's next witness (another officer) I asked DawnMarie is she wanted to do his cross. At that time, I was still a mess and wanted to be anywhere but in that courtroom. She answered "sure." She knew what we needed out this witness so I wasn't worried. However, there was impeachment evidence and I had no idea if she knew how to do it correctly. After all, this was her first jury trial. Yep, her first.<br />
<br />
DawnMarie stood up to cross the officer. Where the officer I crossed got a little combative with me, this officer was actually pretty nice and respectful to her. I honestly think it's because she's a woman. Nevertheless, she began her cross and I sat back and watched. To say I was impressed in an understatement. Prior to trial, I told her how I cross witnesses and my general strategy. I don't know if she had that in mind or not, but she was fantastic.<br />
<br />
She laid the foundation for the impeachment. She got the officer to admit to his prior statement, which was inconsistent with his trial testimony. She got a few more good facts from him and sat down. Perfect. There was no need to beat this cop up about an inconsistent statement. I would remind the jury of it during closing.<br />
<br />
DawnMarie sat down. I leaned over and whispered "good job!". I relaxed a little. The next witness was an evidence technician that had processed the crime scene. He collected all of the firearm evidence (shells and bullets), marked the bullet strikes in the walls, and took a number of the crime scene photos.<br />
<br />
After vomiting one more time, I pulled myself together to cross this witness. I got a lot of favorable facts such as how many shells were collected that were fired by police weapons. How many spent and live shells (4 spent, 5 live) there were in the revolver my client had fired. I put up a picture that showed bullet strikes in my client's bedroom that were caused my police weapons. He had put numbered stickers over each hole in the dry wall. I had him tell the jury how many holes he counted and marked. I also showed him a picture of the door the officer fired his M-4 carbine through and had him count the bullet holes as well.<br />
<br />
But the singular best piece of evidence I got from this witness was this: it was the State's theory that in addition to shooting low twice initially and hitting two officers in the lower legs, that he shot twice more but higher through the door. The State would argue this proved he was attempting to murder the person on the other side of it. One officer had already testified he saw particles coming off the middle of the door as bullets came from inside the room my client was in. But curiously the wall opposite that door had no bullet strikes on it.<br />
<br />
I showed the evidence technician a picture of the room which contained the wall that any bullets that came from the middle of that door would have hit. You could see the wall in the picture. I was displaying the picture on a projector so everyone in the courtroom could see the picture very enlarged. The witness was standing right next to me in front of the jury where the projection table was located.<br />
<br />
I asked "You didn't find any bullet strikes on that wall (I pointed at it), right?" Answer: "No, we did not. If there were any bullet strikes on that wall, we would have marked and photographed them up close." This was a nice example of a witness helping me out by giving more of an answer then he should have. <br />
<br />
Using the same picture, I asked "But you did find two bullets under that box spring or bed (pointing at it), correct?" Answer: "Yes, that's correct." Then I sat down. I told the jury during opening statements that my client fired through a hole (created by the cops trying to kick the door open) on the bottom of his bedroom door 4 times, thus he wasn't trying to kill anyone but was rather warning the unknown intruders he was armed and ready to defend himself.<br />
<br />
With this one witness, the jury heard my client's revolver had 4 expended shells and that there was no physical evidence he shot through the middle-upper part of the door, but rather through the hole at the bottom, just like I told the jury. Having credibility with a jury is priceless. <br />
<br />
But before we ended that day, everyone knew I had just been temporarily ill. I am sure part of it was due to not being fully prepared to cross that officer. I was also a bit nervous. But there was something that spiked a fever, which started to break while I was on my feet asking questions. As we were leaving the courtroom, both prosecutors told me they hoped I felt better tomorrow. And they were genuine. <br />
<br />
DawnMarie and I returned to home base and began to prepare cross-examination for Wednesday's witnesses. Even though my cross of the evidence technician went well, I was still very upset about the first witness.<br />
<br />
DawnMarie told me that at one point during that cross, she felt that I was a really bad lawyer. I would have thought the same thing. I can't imagine what the jury thought. I needed to have a strong Wednesday. But as we sat reviewing the facts we got from my dodgy cross, we realized I had gotten everything I needed to from that witness. I just got no style points. This was a small consolation. I knew I was better than that.<br />
<br />
We prepared cross that night for 4 more police witnesses. I asked DawnMarie if she wanted to cross 2 of them, including one that had been shot. She readily agreed. There was one more officer on the potential witness list and we had no idea what he was going to say. Thus, if he did testify I would do his cross since there wasn't much he could add since he was outside and in front of the apartment when this happened.<br />
<br />
When I woke up Wednesday morning I didn't want to get out of bed. I was still upset with myself over what happened on Tuesday. The dark side of me simply wanted to quit. Had the pressure gotten to me? Was I starting to show cracks? I slumped out of bed and made coffee. Then I went for a run. I normally run in the afternoons after court, but when in trial, I have to get up early and get the run out of the way.<br />
<br />
Initially my run sucked. My energy levels were low and it didn't feel good. But after a couple of miles things turned around. I remember that morning being very sunny and cool. And as I ran on the bike path that runs along Lake Michigan, I began to pull my head back together. Tuesday was just a fluke. Probably happens to everyone. Hell, even Michael Jordan had off nights. By the time I finished my 8th mile and returned home, my head was back in the game. Let's do this.<br />
<br />
We had a good Wednesday. With so many officers testifying, I predicted we would get inconsistent testimony because I felt they were all coloring the story. Or, in other words, lying. And we got some gems that day. DawnMarie's cross of one of the officers who was shot was pretty short but she scored points. Her and I would later say we felt sorry for that officer because he seemed like a really nice guy.<br />
<br />
I crossed the other officer that got shot and with the use of pictures make him look like a liar in front of the jury. He testified to things that were simply impossible and I had the pictures to prove it. I would later nail this guy in closing. Then I questioned the Sergeant that was in charge of this search warrant team. Armed with the documents I obtained through FOIA, I got him to admit he hadn't followed correct procedure. He also gave testimony that was heavily inconsistent with the previous witness. Both points would be driven home during closing.<br />
<br />
The State did not call one of the witnesses DawnMarie was supposed to cross. But they did call the officer who was outside and in front of the apartment. He didn't have a whole lot to add. He was in front, heard the shots, and immediately ran to the back. Once in the back he saw one of the officers that was shot hopping down the back stairs that led up to the entrance in the apartment (the door the police blew open).<br />
<br />
On cross he testified that from the time he heard the first shot until he got around back was about 5 seconds. That was simply impossible. By the time the officer began hopping down the stairs, all of the shooting was over. The police fired 37 times into the bedroom my client was in. And one officer shot a few times through the door and then went outside and shot through a window. There was no way that all happened in 5 seconds.<br />
<br />
But, it supported an argument I would make during closing: this whole thing happened so quickly and since my client was initially asleep, he had no way of knowing what was really going on. In other words, he couldn't have known they were cops since he couldn't see through a closed door. My client, in reasonable fear for his and his family's lives, acted in a couple of seconds. Now I had police testimony to support my argument that this whole thing went down extremely quickly.<br />
<br />
Around 4:30, the State indicated it was done with their case in chief but wanted to wait until first thing Thursday morning to officially rest. DawnMarie and I left and again returned to home base. Due to logistical reasons, we were not able to actually meet with our witnesses to prep them. I had spent most of the previous Friday afternoon in the county jail with my client. I took 12 pages of notes and basically had his whole life on paper.<br />
<br />
But Wednesday night, DawnMarie spoke on the telephone with the witnesses she was going to put on. I was supposed to put on my client and his brother. They would be our last two witnesses. We made a last minute decision not to call one of DawnMarie's witnesses. There wasn't much to be gained through her testimony. <br />
<br />
When we got to the courthouse on Thursday morning, our witnesses were there. This was the first time we really spoke with most of them in person. Clearly I had spoken with my client's mother but never about her testimony. She just needed to stay consistent with her prior statements and Grand Jury testimony.<br />
<br />
DawnMarie spoke with her witnesses individually very briefly. I spoke with my client's brother. I was very nervous about calling him as a witness. We opened our case Thursday morning and DawnMarie called 1 witness before the lunch break. She called 2 more after lunch. And then I decided on the spot not to call my client's brother. He did have good testimony, but we got most of it in with another witness.<br />
<br />
I also felt he could come across as not too credible. I didn't want the jury to think I was trying to fly bullshit by them. It was my decision not to call him and no one, not even my client, knew I decided not to. DawnMarie and my client knew I was having 2nd thoughts about calling him, however. But as soon as I called my client to testify, it was clear I was skipping the brother.<br />
<br />
My client was a good witness. I got in some very general background testimony to establish who he is, etc. Though it was objected to, I got in that he had been shot in the past three times. But the judge's ruling during that sidebar really tied my hands. She wouldn't allow me to really get into the specifics of each shooting. I told the judge that I feared if he simply said he got shot but not why or by whom, the jury might conclude he's a gangster living the gangster life, which often includes getting shot. The judge said I could ask 2 questions per shooting.<br />
<br />
The first question I asked was when the shooting happened. The 2nd question asked about the circumstances of that shooting. Unfortunately, my client simply stated where in his body he was shot and any injuries he sustained. As soon as he started to answer the question that way, I looked at the judge. She wasn't pleased. But I had asked during the sidebar to be allowed to lead so the jury would hear no more or no less than what the judge wanted them to hear. Example: "you were shot the first time when three guys attempted to rob you, correct?" I thought that made a lot of sense. But the judge said no.<br />
<br />
Through his testimony, my client told the story as it had happened through his eyes. This was exactly what I did during opening statements. He talked about being scared. Massive amounts of adrenaline. Fear for his life. Fear for his family's lives. And how he had been asleep and this all happened in a matter of seconds.<br />
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He stood up well to cross-examination. The prosecutor tried to trip him up several times but he was on to it and frequently corrected his questioner. He finished testifying around 6:00 pm. We rested our case. Court was dismissed for the day with closing arguments scheduled for 9:00 am Friday morning.<br />
<br />
Walking to the parking garage that night, I told DawnMarie that if I delivered a solid closing, I thought we would get the verdict. I felt good. Now I just needed to close it. <br />
<br />
During the three days of testimony, we were supposed to begin at 11:00 am. This was so the court could run through its call, give continuances, and handle minor administrative issues relating to other cases in that courtroom. But we usually started closer to 12:00 pm.<br />
<br />
The trial was not well attended. There were what appeared to be police officers here and there along with an occasional law student or junior prosecutor but that was about it. However, since closing arguments began at 9:00 am, we had a packed gallery. Everyone who had business in that courtroom that day was there. I imagine there were even some people out in the hall because there was no more room inside. <br />
<br />
But when I stood up to close, I no longer noticed anything or anyone but the jurors. I already wrote about my closing argument <a href="http://schantz-law.blogspot.com/2011/09/closing-argument.html">here</a>. The State's closing was, as usual, aggressive and slightly loud. But they were trying to sell the jury on things the evidence didn't support but in a lot of cases, contradicted. They had to argue around bad facts and that's never easy. <br />
<br />
The jury got the case at 12:19 pm. We left our phone numbers with the deputy and left. I did not want to stay in the courthouse while the jury was deliberating. <br />
<br />
On the way out of the courthouse, we ran into one of the alternate jurors that was excused from service as soon as the jury went into deliberations. This was the first time I had ever spoke to a juror and I found it to be a great experience. I won't repeat what he said, but it appeared he was leaning towards giving us the verdict.<br />
<br />
A couple minutes later, the other alternate juror was pulling out of the parking garage, saw us all talking, parked his car, and walked up to us. His feelings were pretty much the same. We both thanked them for taking a few minutes to speak with us and headed home.<br />
<br />
By the time we gathered our things, walked out of the courthouse, got in my car and drove home, it was about 1:30 pm. Given what the 2 alternate jurors told us, I hoped for a quick verdict. I told myself that if deliberations go into the evening, we might have a problem. As hard as it was, I tried to relax.<br />
<br />
At 2:00 pm my phone rang. It was the deputy. They had a verdict. My pulse instantly quickened and I got a slight rush of adrenaline. We hoped back in my car and headed back. I called my client's mom and told her to head to the courtroom. I remember feeling pretty good during that drive but there was a palpable level of nervousness lurking beneath.<br />
<br />
We were back in the courtroom pretty close to 2:30. Everyone was waiting for us. The deputy knocked on the judge's door and told her we had arrived. The gallery was now full of cops and my client's family. The judge came out, took the bench, and had the jury brought in.<br />
<br />
When the jurors walked in, at least 3 of them looked directly at me. To me, that's a good sign. The foreman handed the deputy the verdict forms. The foreman handed them to the judge. The judge read them. My palms were sweating massively. After reading the forms, the judge reminded the gallery that no outbursts would be allowed.<br />
<br />
The judge handed the forms to the clerk and asked her to publish the verdict. The clerk read 8 <b><i>Not Guilty </i></b>verdicts. The feeling was beyond describable. The State asked for the jurors to be polled. Individually they confirmed their verdicts. Case over. My client was ordered to be released from the county jail.<br />
<br />
The prosecutors looked deflated. I walked over to both of them, shook their hands, and thanked them for a fair trial. Then I walked to the lockup where my client was changing back into his jail clothes for the last time. He said "I love you". I teared up and we hugged. Twice. DawnMarie hugged him as well.<br />
<br />
Outside the courtroom my client's family awaited. His mother thanked and hugged me firmly. I said "thank you for trusting me with your son's life." I was teary eyed again. She replied "I always had faith and trust in you, Marcus." More tears. Another hug.<br />
<br />
We all took the elevator to the first floor and headed towards the front door. A gaggle of police officers along with the prosecutors were just outside. I warned the family. "Don't look at them," I said. "Just walk on by," I added. <br />
<br />
DawnMarie and I exited through a revolving door and stepped outside. All of the cops stared right at me. I don't know what they were thinking, but I am sure it wasn't good. It was a beautiful, sunny day. I pulled out my sunglasses and put them on. We strolled right past everyone and headed home. Time for celebration.<br />
<br />
We walked to a pub down the street from me. Here we are....<br />
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We each had 2 frozen margaritas and were happily buzzed. I walked DawnMarie to the train stop, said thanks and hugged her goodbye. I came home and laid on my couch. Exhaustion took over. I didn't move much for the next couple of hours. I stared at the TV without realizing what I was watching. <br />
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At 10:30 pm, my phone rang. It was Kenny. He called to say <i>thanks</i> again as he walked out of the Cook County jail, which had been his home for the previous 25 months. Not many phone calls are better than one like this. I said "you're welcome. Now spend some time with your family." We said goodbye. I turned off the TV and got into bed. <br />
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I slept well that night.<br />
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<a href="http://www-schantz-law.com/">www-schantz-law.com</a><br />
<br />
<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com7tag:blogger.com,1999:blog-2375476714378374304.post-59746913078771298782011-09-04T17:41:00.004-05:002011-09-08T16:40:32.293-05:00A Closing Argument<style>
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<div class="MsoNormalCxSpFirst"><i><u><b>From my most recent trial</b></u>... </i><br />
<br />
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. <br />
<br />
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. <br />
<br />
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.<br />
<br />
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. <br />
<br />
Just thought there might be some interest. <br />
<br />
Here is also a <a href="http://archive.chicagobreakingnews.com/2009/07/man-charged-in-shooting-of-2-police-officers.html">link</a> 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. <br />
<br />
<div style="font-family: Arial,Helvetica,sans-serif;"><span style="font-size: x-small;"><i>[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.] </i></span></div><br />
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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">The fact that the intruders were actually police officers is unfortunate. Had Kenny Green known they were police officers, none of this happens. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. <b style="mso-bidi-font-weight: normal;"><u>Kenny didn’t want to die on July 16, 2009. He tried to save his life, not end it.</u></b></div><br />
<div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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? </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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<sup>nd</sup> 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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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”.</div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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.</div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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]</div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">It’s simple. That crack belonged to the crack dealer, K.H. The person the C/I bought the crack from, K.H. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">[Jury instructions; Attempt Murder, no intent. Aggravated Battery, didn’t know were cops]</div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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. </div><div class="MsoNormalCxSpMiddle"><br />
</div><div class="MsoNormalCxSpMiddle">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.<br />
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Read more about this case <a href="http://schantz-law.blogspot.com/2011/09/belief-in-tough-case-trial.html">here</a>. </div><div class="MsoNormalCxSpMiddle"><br />
<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
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<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a></div><div class="MsoNormalCxSpMiddle"><br />
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</div>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com25tag:blogger.com,1999:blog-2375476714378374304.post-75150987229584341802011-07-01T09:51:00.000-05:002011-07-01T09:51:18.573-05:00Where's His Lawyer?I recently litigated a motion that I ultimately lost. It was a motion to suppress a confession, both oral and written. Nationwide, these motions are rarely granted. In order to sustain such a motion, typically some serious police misconduct has to be proven.<br />
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In Illinois, though it's a defendant's motion, it's the State that has the burden of proof at hearing. The government must prove by just a preponderance of the evidence (more likely than not) that the statement was given and taken lawfully. Most allegations in such a motion are that either the defendant's <i>Miranda</i> rights were violated or that the statement was not voluntarily given. <br />
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With the burden of proof so low, it's easy to understand why these motions are seldom sustained. The State calls a detective to testify. The detective says <i>Miranda</i> warnings were given, there was no physical force used, defendant was allowed to use the bathroom, etc. In summary, the detective testifies that everything that took place surrounding the statement was legitimate. <br />
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But in Illinois, things can, and often do, go a step further. An Assistant State's Attorney gets involved. You might think there's nothing wrong with this. If you've ever watched <i>Law and Order</i>, you will often see the DA standing on the other side of a one way mirror watching an interrogation. And you will see the DA interacting with detectives, instructing them on what questions to ask, etc. After all, the DA is a lawyer. The DA knows exactly what the government needs to prove its case at trial.<br />
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I know it's only TV, but when does the DA actually go in and question a suspect who has no lawyer sitting next to him? That doesn't seem right, does it? Keep reading. <br />
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In Chicago (and I assume the rest of the state), the county state's attorneys office has a prosecutor on call 24 hours a day for the purpose of felony review. This attorney has the sole discretion to approve felony charges against someone in police custody. They review the evidence and then decide whether it's enough. There's nothing wrong with this. <br />
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But in many situations, the felony review attorney does a whole lot more than simply sign off on charges. They assist the police with their investigations. I also have no problem with this. However, our felony review attorneys regularly take part in interrogations of suspects in custody. And, it's actually this same attorney that prepares written confessions, which the suspect ultimately signs. It's also this same attorney who approves the felony charges against the suspect. These roles I take issue with.<br />
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The suspect is told that this attorney is an ASA and not the their lawyer. But does the suspect really understand this? Does the suspect realize this attorney is there to hang the defendant? I actually argued that this practice was equivalent to a <b><i>legal lynching</i></b>. Yes, I said exactly that. <br />
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The prosecutor knows exactly what needs to be contained in a confession in order to insure a guilty verdict should the case ever see trial. Thus, the questioning of the suspect is designed to elicit the most incriminating facts. In a lot of cases, the suspect really believes he is going home if he cooperates. He's been befriended by a detective and then introduced sometimes 24-36 hours later to a nice lawyer wearing a suit. The suspect has been given cigarettes to smoke and McDonalds to eat.<br />
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I think at no time does the suspect fully understand that he's being lured into an ambush. And that if he cooperates as requested, not only is he not going home, he's probably eventually going to prison. So, where is the suspect's lawyer? Good question.<br />
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<i>Miranda</i> speaks to the 5th Amendment right to remain silent. Usually when someone tells detectives they want a lawyer or don't want to talk, the interrogation is over. Usually. <br />
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But the crux of my argument in this case was not <i>Miranda</i>. It's really hard to get a judge to buy that no <i>Miranda</i> warnings were given. I felt the 6th Amendment right to counsel should have been triggered. I've also <a href="http://schantz-law.blogspot.com/2009/11/right-to-attorney.html">written</a> about the differences between the 5th and 6th Amendments and the right to a lawyer.<br />
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The 6th Amendment right to counsel isn't triggered until the prosecution has begun or the defendant is brought into court. That seems pretty cut and dry. But I argued the involvement of the prosecutor was clearly the beginning of the prosecution. The attorney was there to get a signed confession that would hold up in court and contain facts to prove the government's case. He also approved the felony charges. That sounds to me like the beginning of the prosecution.<br />
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But the judge disagreed. He said though my argument was novel, he could find no authority to support it. And he's right. There is no controlling case that holds my client's 6th Amendment rights were triggered due to the involvement of the Assistant State's Attorney. But just because there's no case, doesn't mean I am wrong.<br />
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I argued that I couldn't think of a time when a criminal suspect had a more dire need for legal counsel, than the point at which they agree to sign a confession. A confession prepared by an Assistant State's Attorney. They simply do not understand the ramifications behind their actions. They have not been advised of this crucial information. For, as I pointed out, if there's a signed confession, it's doubtful the defendant will ever need a trial attorney.<br />
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I think the judge actually bought my argument because he said "I can find no authority <u><i>today</i></u>, to support your argument."<br />
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The reality is that the suspect is never told he is signing a confession. It's always referred to as a statement. I like the clever distinction there. Even a pretty ignorant person knows signing a confession probably isn't a good thing. But a statement must seem harmless. The cops are trained at getting them. "Oh Mr. Suspect, just help us. Tell us what happened and this will all be over." Is this really fair? <br />
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How many suspects would sign a confession or even give an oral statement if they were warned as follows: any statement to any police officer or any Assistant State's Attorney will more likely than not result in felony criminal charges, which will place you in the custody of the county jail for up to two to three years and then ultimately in prison for even more time. <br />
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Who that understands that, still talks or signs a confession? I don't think many.<br />
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The beginning of my proposed warning sounds pretty similar to <i>Miranda</i>. But I feel the understanding of the right to remain silent is trumped by the need to understand the real consequences if you talk. <br />
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"Anything you say can and will be used against you in a court of law." I know what the last sentence means because I am a criminal lawyer. But can the average high school dropout with no GED appreciate the meaning? I think not. <br />
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The fact that statements and confessions of criminal suspects in my jurisdiction are allowed to happen as I have written, is constitutionally flagrant (said this in my argument as well). In my opinion, there are serious due process and fundamental fairness issues.<br />
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Doesn't a suspect have the right to have someone looking out for their best interest? Why is it that in way more cases than not, the only lawyer the suspect ever speaks to is there to screw him? What's even more egregious is that all written statements are prepared by the prosecutor. It's NEVER in the suspect's handwriting. It's never even the suspect's own words. It's either typed or handwritten by the ASA and contains words and language no suspect would ever use. Who speaks like this: "subsequent to arming himself with a 9mm semi-automatic handgun, Mr. Suspect carefully approached the victim from the rear and demanded money"?<br />
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The only people that talk like this are cops and lawyers. What has happened is that a prosecutor took a story from a suspect and cleaned it up so it's presentable in court. Then the suspect signs every page of the statement indicating it's his words, but it never really is. Again, this seems to be part of the prosecution. Am I the only person who feels this way? <br />
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I would love to read the opinion that the late Justice Brennan would have written if presented with this issue. This doesn't pass the sniff test, but yet goes on around me everyday. <br />
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<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
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<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com2tag:blogger.com,1999:blog-2375476714378374304.post-71769616670277570662011-05-17T14:52:00.000-05:002011-05-17T14:52:26.471-05:00Justice Served, FinallyLast June I <a href="http://schantz-law.blogspot.com/2010/06/help-friend-go-to-jail.html">wrote</a> about a case of mine. Please take a minute to read the prior post so what's to follow actually makes sense. And yesterday I <a href="http://schantz-law.blogspot.com/2011/05/dwb-driving-while-black.html">barked</a> a little about how sometimes justice is elusive to those that need it most. I am happy today to report that my client, Mike, got justice. Here is how it happened:<br />
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The day I wrote the post last June, Mike's case was set for trial. The State didn't answer ready. The trial was reset for July. On the date of trial in July, the police didn't show up. Trial reset for August. In August the police were there. There were four of them. Two were the State's witnesses and two were mine.<br />
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When I stepped into the room where officers subpoenaed for court wait, I saw a number of cops. I didn't know who any of them were. And they didn't know me. But they knew I was a defense attorney. I asked if my two officers were present. I was told they were not. Being the friendly fellow I am, I stayed in the room and began chatting with a couple of the cops.<br />
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As it turns out, two of the cops were indeed the two I subpoenaed. They both had lied to me. They initially had no idea why they were there. They hadn't arrested anyone that had court that day. From talking with me, however, one of them figured out why they were there: to help my client's case.<br />
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The two officers I subpoenaed had responded to the domestic call between Mike's lady friend and her boyfriend. They were both on scene when Mike showed up to help the woman move out. And they both stood there and had a conversation with Mike while the woman loaded her things. <br />
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These police officers were also the ones that arrested the boyfriend for making a false police report. You think they had relevant testimony that supported my theory of the case? You betcha.<br />
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The one officer that figured out what was going on quickly pulled a prosecutor out in the hall and closed the door. The next thing I know I am being told the State cant' answer ready. Really? Why not? Everyone is here?<br />
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Unfortunately the courtroom this case was assigned to was so backed up that nothing ever got litigated. I saw guilty pleas and continuances. That was it. The judge readily continued the case until October.<br />
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When the October trial date rolled around, the prosecutors assigned to the courtroom changed. The guy now running the courtroom hadn't looked at the file. He couldn't answer ready. Wow, shocker. Case continued until December.<br />
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Due to the retirement of the judge, the was was reassigned. Great. Now I am on the 3rd set of prosecutors. But at least cases move through the new courtroom. And it's a very good judge. I set the case for a bench trial in early February. But the trial didn't go. No cops.<br />
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I pulled one of the prosecutors aside and told her about this case. And I threw my playbook on the table, opened it up to my theory of this case and told her how I was going to win at trial. I wasn't arrogant about it. I wasn't a jerk. But she knew they had a loser.<br />
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Long story short, over the next couple months we discussed a disposition that would keep my client from getting a felony conviction. Even though I liked this case at trial, I couldn't guarantee a <i>not guilty</i>. My client initially balked. He didn't want to admit to something he didn't do. But he eventually agreed to go along with what the State and I were trying to put together. <br />
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I ended up writing a letter to the ASA in charge of this courthouse. This guy doesn't come to courtrooms. He's the boss. I told him who my client is and explained what I felt the facts were. I explained my theory of the case and added I wasn't afraid to try it.<br />
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I walked into the courtroom this morning and was told the case was being dismissed. I can't describe how hearing this made me feel. It was awesome. My client wasn't there yet. I stood outside the courtroom and waited for him to arrive. I felt like a child waiting to tell my dad I had got straight A's on my report card. The giddiness was at that level.<br />
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He showed up. I told him. He smiled. We shook hands. 10 minutes later we were in front of the judge. The case was dismissed. He thanked me and left. <i>Mission complete</i>, I thought to myself. <br />
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There are two points to this post. First, is that the system can and does at times work. Justice can be delivered. Second, this story should illustrate how damn hard and frustrating it can be to deliver that justice to the criminal defendant. There are numbers of people trying to get justice for The People of the State of Illinois.<br />
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But for the criminal defendant, just one: his lawyer. <br />
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<a href="http://www.schantz-law.com/">www.schantz-law.com</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com3tag:blogger.com,1999:blog-2375476714378374304.post-9051601090711947722011-05-16T14:09:00.000-05:002011-05-16T14:09:23.246-05:00DWB: Driving While BlackEveryone has heard of DUI or DWI. But have you heard of DWB? <i>Driving While Black</i> appears no where in any law book I've ever read. I've never read it in a case, either. And I am sure it's not in any Chicago Police Department training manuals. But, it's a condition as real as cancer.<br />
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Everyone (even non-lawyers) seems to know instinctively that the police should have a reason to pull you over while you're driving. Speeding. Running a red light. Busted brake lights. Incomplete stop at a stop sign. Feeling a bank robbery. Our own sense of right and wrong tells us that the cops can't just pull us over willy nilly. But they do it. All the time.<br />
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Driving around with contraband (drugs and guns) in your car is what we call <i>Riding Dirty</i>. This act is, of course, illegal. In some cases an unloaded gun locked in a box might be ok. But I am talking about a pistol in the glove box, under the driver's seat, or in the console. That's always illegal. And of course, drugs are bad too.<br />
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I can't count how many cases I've handled that began from a traffic stop for <i>Driving While Black</i>. It's a bunch. That's all I know. I have seen with my own eyes on several occasions the police curb a vehicle and immediately pull out the people in the car and perform a full custodial search of them. And then rifle through the car. I've actually pulled over and watched this from a distance.<br />
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When I was new to this business, I was told this stuff happens all the time. I didn't believe it. Until I saw it. But I thought the first time was maybe isolated. Then I saw it again. And again. Ok, you got me. It goes on. I don't even really notice it anymore.<br />
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Should the person pulled over not be riding dirty, he gets to drive away. No harm, no foul. <br />
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Without a doubt, this is almost always constitutionally flagrant. I think EVERYONE knows it happens but our local criminal justice system (often the judges included) looks the other way. As a defense attorney this is a cause for rapid aging. Do you know how frustrating it is to have both the law and the truth on your side, but it not make one iota of a difference in a courtroom? At times it makes me want to chew my own teeth. <br />
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Silently our police, prosecutors, and most judges must believe the ends justify the means. If some kid with a gun in his car gets pulled over and searched illegally, well....4th Amendment, schmendment....it's a gun off the street. And what we want are arrests and a full prison system, right?<br />
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The police need to make our streets safer. Removing guns and drugs is a huge part of the solution. I don't like guns or drugs. Make them all evaporate as far as I am concerned. But there's this whole 4th Amendment thing that sometimes stands in the way (or at least it should). I think police see it as an annoyance rather than as a reason to pause. And the willingness to break the law and follow it up with blatant perjury, makes it seem like the 4th Amendment is, at times, a joke.<br />
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If the police can pull over a car simply because some black people are in it, then the 4th Amendment <b>is</b> a joke. Being black isn't suspicious. Being black in a black neighborhood really isn't suspicious. Being black in a black neighborhood and driving a car with big, shiny rims really, really, really isn't suspicious.<br />
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Illinois case law has held that an officer's mere hunch or suspicion isn't really probable cause to do anything. Obviously the police know this because black men in the hood can't seem to ever not run red lights. Or not drive cars that were built to smell like marijuana factories. Running a red light or riding like Cheech & Chong is surely grounds to pull over a car. I have no problem with that, when it's true. <br />
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No where in the original text of the 4th Amendment does it read that it's a right that doesn't apply equally to all. And I can't think of any jurisprudence that's held that a white person's 4th Amendment rights are superior to minorities. Yay for the Constitution and some wise judges.<br />
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But the reality is in our bad neighborhoods the 4th Amendment is really a gift the police can bestow on those they deem worthy and only at a time convenient to the officers. In my neighborhood, I never see the cops throwing people on the hoods of squad cars or up against walls. Thus, to my eyes it appears my 4th Amendment rights are WAY better than some of my client's.<br />
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Is this right? What pisses me off about parts of our Constitution is how brilliant it is as a document but at the same time absolutely meaningless in the streets. There's a battle going on and I am on the losing team. The government, in secret, believes that some police functions trump personal rights, like the 4th Amendment. And I am sure some citizens have no problem with the scenarios I've described here. For them, perhaps the ends do justify the means. <br />
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We on the losing team seem to think personal rights actually mean something and <i>should </i>apply universally. I remember being incredibly idealistic once upon a time. But being in this business has caused me to grow increasingly cynical. However, I still want justice to prevail and I fight my ass off to bring it to my clients. <br />
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At times when some folks need the protections of the Constitution the most, it's as evasive as a winning Lotto number. They look to their lawyers. They tell us they know what the police did was wrong. And we the lawyers also know that the police were wrong. We file motions. We conduct hearings. Cops lie. We lose. [Side note: not suggesting all cops lie all the time.]<br />
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Then the times comes when we have to look that client in the eyes and say "I did everything I could. Now we have to cut a deal." And in the back of my mind I am saying <i><b>I am sorry you're black. And I am really sorry you're soon headed downstate for a while. </b></i><br />
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On days like this, I leave court feeling a little deflated. I go home. I slowly take off my suit. I sit down. I look at my dog and tell him about my day. He listens. Then we go running. I feel better.<br />
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The very next morning I put on a different suit and I go back to court to try this again. And somehow, despite everything that's stacked up against me, I manage to believe in my cases. Every time I have to litigate, I go into it thinking that justice is there, and that I just have to grab it for my client. <br />
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Sometimes justice is there. And I manage to grab it. The client's case is instantly flushed out of the court system by a favorable ruling. I get hugged. My hand gets enthusiastically shaken. I am even thanked. It feels amazing. The 4th Amendment has a pulse. My work is vindicated. I am reminded again why I do the job.<br />
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If ever so briefly. <br />
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<a href="http://www.schantz-law.com/">www.schantz-law.com</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com5tag:blogger.com,1999:blog-2375476714378374304.post-69525633802250753332011-05-02T16:23:00.000-05:002011-05-02T16:23:15.177-05:00Now that Bin Laden is dead....As everyone knows, Osama Bin Laden was killed by United State's Navy Seals yesterday in Pakistan. I read that he was staying in a multi-million dollar mansion, which was attacked by the US forces. If the video I just watched of this actual residence is genuine, I don't think the word <i>mansion</i> is appropriate. However, he was clearly not killed in a cave somewhere in Afghanistan.<br />
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But we sort of knew he was hiding in Pakistan for a while now. Or at least we thought. From my understanding of this mission, the CIA, with help from God only knows, got a tip OBL was staying in this compound. Or maybe they knew he was going to be soon staying there. Either way, this compound became the focus point for a massive gathering of intelligence.<br />
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An operation was planned by the Joint Special Operations Command (likely). A group of highly trained US Navy Seals must have practiced this operation on a mock-up a number of times. Then they actually went in and killed him. I hear they took his body with them.<br />
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Well done all around. Osama Bin Laden is dead. The most expensive manhunt in human history is now over. We got the bad guy. And we got to kill him. According to the news, it was a US bullet fired by a US Navy Seal that killed OBL. <br />
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I am left asking an obvious question: what does the death of Osama Bin Laden change in terms of the United States? Are the Taliban suddenly going to lay down arms in Afghanistan and play nice? No. Are gas prices going to plummet below $3.00 a gallon? No. Is the US economy going to suddenly recover? No. Will you no longer have to take off your shoes before boarding an airplane? No. Is Al-Qaeda going to fold and end global Jihad? No.<br />
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I think it's great that we finally got OBL, but I don't see the need or wisdom behind such a massive celebration. I think it's misplaced. Many experts believe that OBL had little day to day operational control over Al-Qaeda. This terrorist organization is de-centralized. Small cells around the world are only joined by a common purpose, terrorism. We cut off the head of but one of a dozen or more snakes.<br />
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Obviously Al-Qaeda has a propaganda problem since they long claimed OBL was protected by Allah, thus his continued elusiveness from the US. I can't wait to see the spin on this one. But I think Bin Laden might be more dangerous dead than alive. It will be spun that OBL died as a martyr in Jihad against the great infidel, The United States. Who will join him? I am sure the line will be long.<br />
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I am sure there is going to be an upswing in global terrorists operations. Retaliation and revenge are two very compelling sources of motivation. I am no terrorism expert, thus cannot predict what's to come. But if another operation of the scope of 9/11 happens, I won't be surprised. I want to think our counter-intelligence agencies can prevent another 9/11. But I just don't know. I was stunned by what happened on 9/11. The ease in which that was pulled off was truly unbelievable. <br />
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I imagine family members of people lost on 9/11 feel some sort of vindication. People were chanting <i><b>USA</b></i> <i><b>USA USA</b></i> from the sidewalk in front of the White House. But what really are we celebrating? A man is dead. Ok, the figurehead of a violent anti-US terrorist organization is dead. One of the men behind 9/11 is dead.<br />
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I was as pissed off as any blue-blooded American on 9/11. But I immediately asked the question, "why?" It was on 9/11 that I began to really study and attempt to learn geopolitics. I had to know from where such hatred came. I had already studied Islam in college, thus I knew it wasn't a religious issue. Islam, like all formal religions, preaches peace and humility.<br />
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President George W. Bush claimed the US was attacked by people that hated American freedoms. I didn't buy it. But that claim certainly was a rallying cry that appealed country wide. But that allegation isn't any truer now than it was then.<br />
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Over time I came up with reasons why 9/11 happened. I won't share them because they are very personal opinions that are wholly my own. And while I would never condone the horrific events that occurred on that September morning, I began to understand where the hatred came from. <br />
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Osama Bin Laden was the lightning rod for the group responsible for 9/11, Al-Qaeda. Now that he is dead, does anti-American dogma disappear? Probably not. None of us really knows the state of Al-Qaeda. I am glad intelligence agencies are working non-stop to prevent further attacks. Just because OBL is sleeping with the fishes (literally) doesn't mean this is all over. <br />
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If killing Bin Laden was just, then justice was served. But I cannot bring myself to celebrate the death of another human. It's not that I don't despise the man and everything he stands for, but I don't see the need to suddenly feel patriotic because he's dead. I was just as American on Friday as I am today. And will be tomorrow.<br />
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What I fear is that, in death, Bin Laden will be much stronger and influential than he ever was alive. He's now an even bigger symbol for anti-American animus. He arguably died for his cause. And a lot of people believe his cause was just. This can be very dangerous.<br />
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To us, Osama Bin Laden was an evil terrorist, but to others he was a defender of Islam trying to rid the holy land of infidels, or non-Muslims. Thus it's easy to see how the man might be praised in certain populations, while hunted by others.<br />
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And we got him. But where do we go from here?<br />
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The absolute worse thing that could happen would be the politicization of Bin Laden's death. We don't need members of the American government on television saying "yeah, we got him and good riddance!" By rallying around this event, we only maximize the potential negative effect it could have. If we increase his significance, it could simply work against us. <br />
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The terrorists and those that want to remove the United States from the map, probably already regard Bin Laden greatly. They don't need us to justify their praise. Bin Laden was a man. Nothing more. Nothing less. His death was arguably warranted and thus just, but we need not lose the forest for the trees.<br />
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As a country, we still have a lot of work to do both home and abroad. Now is not the time to get sidetracked because the most infamous villain in US history has been served some cold, hard American-style justice.<br />
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The real enemy is American hatred. Eradicate it and the terrorists go with it.Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com0tag:blogger.com,1999:blog-2375476714378374304.post-64087401176040376082011-04-08T14:20:00.001-05:002012-10-27T15:42:41.323-05:00Hello 40. What took you so long?I turn 40 next week. I remember being in high school and having friends whose parents turned 40. It seemed so damn old. My life hasn't exactly been text book in terms of a typical life progression. But then I don't think I am too typical.<br />
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I was still in undergrad when I turned 30. I was living in Austin, TX. I didn't mind turning 30. I was in a band playing original music. I was in good physical shape. I was surrounded by good people. I was able to do things I enjoyed. At 30, I hadn't even decided to go to law school yet.<br />
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It's 10 years later. I am 10 years older. But fundamentally not much has changed. I am again in a <a href="http://www.reverbnation.com/mondayblue">band</a> playing original music. And it's the first such band since that band in Austin. I am still in good physical shape. Arguably better than 10 years ago. Again, I am surrounded by good people. I am still fortunate to do things I enjoy. I am pretty basic though.<br />
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At 30 I had stress. At 40 I have stress. It's a different stress but it affects me the same way. And I handle it the same way. It would appear that if your life is 100% tranquil, you might not be doing much. If you worry about nothing, you care about nothing.<br />
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In the last 20 or so years, 40 year olds have changed. My high school friend's parents seemed to be pretty boring. About the only thing any of them seemed to do for recreation was play cards. How many of them ran marathons? None. How many of them wrote music or played an instrument? None. How many went to rock concerts? Maybe one or two but it would have been to see Cat Stevens or someone like him.<br />
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I am not trying to convey that I am some super cool dude that deserves a magazine cover. I doubt my daughter thinks I am cool. Some of her friends do, however. The point I am making is that the times have changed. It's now ok to do cool things at 40, 50, 60, 70, or hell even 80.<br />
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There could be something in my blood, however. A few years back, my 83 year old Grandpa Lou went golfing one morning. He had been a golfer since way before I was born. All of my life I identified my Grandpa Lou with two things: gin martinis and golf. It was a warm early September morning. He had recently become unable to walk 18 holes at a pace the game demands. He had reluctantly started riding golf carts in his late 70's.<br />
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Grandpa Lou was never a great golfer. He was average. A good day on the course found his score somewhere in the mid 80's. But, he loved the game. It was his passion. He read golf magazines. Golf books. He wore golf clothes. And he watched it on TV. He was a golfer. As he aged, his scores kept getting higher and higher. He could no longer hit the ball as far or as accurately as he once did. By the time he was in his 80's, his scores gradually rose to the upper 90's.<br />
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But on that September morning, he shot extremely well and landed back in the mid 80's. It was an awesome round. Afterwards he went to the clubhouse and drank a couple of beers with his golfing buddies. This was as much a part of a round of golf as hitting of the golfball. Sometime in the early afternoon he grabbed his clubs and headed to the parking lot. He changed out of his golf shoes and headed home.<br />
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Upon arriving at home he poured himself a gin martini. He turned on his computer to check his email. Yes, he was 83 and had an email account. I remember his username clearly. It was: martinilou@something.com. As his computer was booting up he sat down in the chair right in front of it. Then he lit a cigar.<br />
<br />
And then he died. Just like that. He was gone.<br />
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The next morning when I got the call from my father I was stunned. Grandpa Lou was healthy. I never knew the man to be sick. He had rotator cuff surgery back in the early 80's but that was it. It wasn't until his wake that we learned of his round of golf the day he died. The other 3 men from his foursome showed up. And each one of them, separately, told us about it.<br />
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This side of my family is extremely small. My father has one brother who has two sons. I am an only child. I have one child. So there were only 6 of us for whom to give condolences. I don't know how many people showed up. It had to have been close to 200. My cousin put together a picture collage that included pictures from Grandpa's childhood, though high school, through the Navy in WWII, into early adulthood, then as a father, then as a grandfather, and finally as a great-grandfather. <br />
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The next morning was his Catholic funeral. The attendance was much, much smaller. I gave a speech that I cried through much as I am crying right now writing this. Though we were once quite close, we had grown apart the last 5 years of his life. Now he had died before I could tell him how much he meant to me.<br />
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The point of this very personal story is that age is nothing more than a measure of time. Grandpa Lou never seemed like an old man to me. He just didn't. He took care of himself. He did things he enjoyed. And he had a passion he carried with him until the second his heart stopped and the last breath left his body.<br />
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He was also into younger women...but I'll leave that one alone. Oh...maybe just one little nugget...he had a 20 something girlfriend when he was in his early 70's. And don't think he was some sugar daddy or something. He wasn't wealthy. He could just keep up. And had the maturity and class of a man who had lived a few years. He didn't dress like an old man. He didn't smell like an old man, either. It was my grandfather of all people that turned me onto the cologne <i>Eternity</i>. <br />
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My Grandpa was an extremely handsome man that aged well. There is also no way on Earth he ever felt he was old. Impossible. I doubt he feared much. Even getting older. And why? Not much had changed. He never once said "oh I am too old to do that". That wasn't him.<br />
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When I sat down to write this, I had no plans to include a story about my late grandfather. I am serious. I am just as surprised that I just wrote this as you might be to have just read it. But I find myself incredibly similar to the man. And when I go, when it's my time, I want to check out in the same manner.<br />
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I want to do something I've loved doing most of my life one last time and then BAM, lights out. I sure as hell don't want to rot somewhere being slowly consumed by illness and disease. To me, that's breathing, not living.<br />
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So whether it's going for an hour run or maybe playing loud rock music on a guitar or watching a sunset on a beach or seeing my daughter smile, I'll be ready to go.<br />
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All I ask is that Dark Side of the Moon be played in its entirety at my wake. And a guitar pick be placed in my right hand. Oh, I also want to be buried in running shoes. I would also like my ashes throw into a brisk mountain wind. Then I'll rest. Then my circle of life will be complete. <br />
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But until then, I have so much more to do. I am barely getting started. So hello 40. Bring on 40 more.Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com0tag:blogger.com,1999:blog-2375476714378374304.post-29248517167033353072011-04-04T10:08:00.000-05:002011-04-04T10:08:38.534-05:00When The Client Becomes Co-CounselEvery now and then, I will get a client that finds his way to the law library inside the Cook County Jail. I've never been inside this library. I don't even know where it is. But I will assume it's like most law libraries. There's books of case law. Statutes. Treatises. Digests.<br />
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I have had a couple of clients that found case law that helped me prior to a motion hearing. I am not afraid to admit I don't know everything or have read every case on any given topic. Thus, in a few instances, the extra help was appreciated. <br />
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On the other hand, more often than not, the client begins to think he is also a lawyer. This causes a lot of problems. It forces me to spend huge amounts of time explaining why they are wrong about issues pertaining to their case. I sometimes get letters from clients laying out some legal theory that has no basis in the law. And then I have to spend an hour writing a reply letter correcting them. I suppose it's part of the job. <br />
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Clients do not know the rules of evidence. They don't seem to understand why an affidavit from a third person explaining that the client is innocent, cannot pry the jail doors open. They don't understand that lying is one thing, but proving the lie is something all together different. They assume people will testify truthfully. Only we in the business know perjury is as common in the courtroom as snow is in Alaska. You can't seem to have one without the other. <br />
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I can only imagine how frustrating it must be sitting in the county jail for months on end fighting a case. Is it unreasonable for a client to think they might be able to help their plight by a few trips to the law library? I guess not, though it's incredibly naive. If all it took was going to a law library to become a lawyer, most lawyers would be terrible in practice.<br />
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Of course, when the client creates a litigation plan, it's typically shared with the family too. Mothers and wives call me to find out when I will be putting this new plan in to action. Now not only do I have to correct the client, I have to correct the family as well. In some of my cases, I have spent more time teaching the law than actually practicing it. And it's very frustrating. No one seems to understand that credible testimony alone can be enough to prove up an entire case.<br />
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But no gun was found on my husband when arrested, so how can he be charged with armed robbery with a firearm? If there's no gun, there's no case. You can beat this, right? This one comes up a lot. Very few armed robbers are caught in the act or immediately afterwards. Most are taken into custody weeks or months later. It's hard for some to understand that if the jury or judge finds there was a gun, there was a gun. End of story.<br />
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I once had a client who wasn't being allowed to access the library. When he and I were before the judge, I mentioned the problem. I asked the judge to sign an order that I would draft mandating my client's access to the library. The judge looked up at me, smiled and said "Is Mr. Defendant now your co-counsel?" I smiled back, "no, judge. He is not."<br />
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The client clearly had other ideas. By the next court date he had assembled an impressive collection of legal nonsense and had crafted a defense that wasn't a defense. It was suicide. His well-crafted plan for trying his case was sure to end him with a 12-15 year prison sentence. The case was a dog. Absolute dog.<br />
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In the end I was able to convince him to take a negotiated plea deal and a 3 year prison sentence, of which he would serve about 13 months. Apparently, this client must have also studied for the Bar exam too because was able to craft a civil complaint and sue me for malpractice while in prison. This man had the worst criminal background of anyone I have represented. That is saying a lot. On this 13th felony, he got 13 months in prison and still sued me for malpractice. No good deed goes unpunished.<br />
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Fortunately, unlike most criminal defense lawyers, I carry malpractice insurance. My carrier hired a civil attorney to represent me and the case has been dismissed. This whole ordeal left a really foul taste in my mouth. It cost time and money. I am sure my insurance premium will go up next year. And for what?<br />
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Because a non-lawyer thought he knew the law better than his lawyer. From here on out, I am going to cringe when a client informs me he's been to the law library. Rarely does anything good come from it. Please let the lawyers be the lawyers.<br />
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When we need co-counsel, we'll ask. <br />
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<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
<br />
<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com5tag:blogger.com,1999:blog-2375476714378374304.post-32639594303215082732011-03-15T15:57:00.000-05:002011-03-15T15:57:55.556-05:00Spousal Consent To SearchI recently had a case where my client was charged with being a felon in possession of a firearm. I filed a motion to suppress the gun. Though many facts were in dispute at the hearing on that motion, the issue was clear: does a spouse have the legal authority to consent to the search of their husband's/wife's car?<br />
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The main allegation in my motion was that my client's wife did not have legal authority to consent to a search of his car. She signed a consent form. The car was searched. A pistol was found under the driver's seat. Case closed, right? Wrong.<br />
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My research into this issue found that a person must have some control over the thing they are giving a consent to search. This extends beyond spousal relationships. A roommate could consent to a search of a shared closet, but probably not the closet in your bedroom.<br />
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At the hearing, I got the police officer to admit that a registration check of the vehicle revealed it was registered only to my client. The cops also used keys taken out of my client's pocket to unlock the car. In fact, the officer admitted there was no evidence the wife co-owned or even shared the car. <br />
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The officers believed, though incorrectly, that a spouse could give consent to search a vehicle belonging to their better half. My research found otherwise. Going into the hearing, I knew I had to establish the wife had no control over her husband's car. How did I do this? As written above, I got the police officer to help. Then I called the wife as a witness. She testified she wasn't on the car's title, registration or insurance. She had no keys to the car and never drove it. Why? She had her own car.<br />
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Her testimony and the police testimony corroborated each other. Had she opened her purse and pulled out keys to the car to allow it to be searched, it would be a different story. Had her name been on the vehicle's registration, likely different outcome. But this wasn't the case.<br />
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The judge sustained my motion. Rather than immediately dismissing the case, the State asked for a check date. Legally the State could appeal the judge's ruling to the Illinois Appellate Court within 30 days. They didn't. Instead, the prosecutor handed me a case from the United States 5th Circuit Court of Appeals. We are in the 7th Circuit, thus this case had no controlling authority. He planned to make an oral motion to reconsider and handed me the case he was going to cite 5 minutes ahead of time and it was from another appellate jurisdiction. <br />
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An oral motion to reconsider is like telling the judge you have no real legal basis for your motion but are doing it anyway. If you have a good motion to reconsider, you write it, cite case law and argue like mad in the motion. But I digress. <br />
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I sat down to read the case and interestingly enough, it restated the law exactly as I argued it at hearing. The case held that a spouse with <b>joint control</b> over an automobile may give consent for it to be searched. There's that word control again. I thought we had settled this? The State made a pretty novel argument. It was argued that if this was a civil case, the wife would have a marital interest in the husband's car should the marriage be dissolved. Thus, it was further argued, she has control over the car.<br />
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I didn't see the logic behind this argument. Neither did the judge. Motion to reconsider was denied and finally the case was dismissed. This case is a perfect example of an issue for which I didn't know the law. Initially, I had no idea whether his wife could give legal consent to search. But I looked it up and though I didn't find a case directly on point, I did find the black letter law regarding giving consent to search property of another. I argued that being married does not create a legal authority to give consent to search your spouse's car. A showing of some control over that car must be shown to validate the consent, married or otherwise. And since it was not shown that the wife had any control over her husband's car, the consent was not valid and the gun must be suppressed. <br />
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The judge agreed with me. <br />
<br />
<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
<br />
<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com2tag:blogger.com,1999:blog-2375476714378374304.post-64382467006434536132011-02-24T16:07:00.000-06:002011-02-24T16:07:01.167-06:00What Is Possession?Here's a hypothetical based on a case of mine:<br />
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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.<br />
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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. <br />
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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.<br />
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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.<br />
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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.<br />
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His girlfriend hired me. They later got into a fight. She stopped paying me. What do I do with this case?<br />
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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.<br />
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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....<br />
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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.<br />
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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. <br />
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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.<br />
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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.<br />
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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.<br />
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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 <i><b>could</b></i> 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.<br />
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There's just something not right about this. <br />
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<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
<br />
<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com1tag:blogger.com,1999:blog-2375476714378374304.post-55888578947404621572011-02-17T12:32:00.000-06:002011-02-17T12:32:59.819-06:00Carrying 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.<br />
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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.<br />
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If you live in an extremely violent neighborhood where shootings are common, you have some limited choices (assuming moving isn't one of them):<br />
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A. Don't leave the house.<br />
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B. Don't carry a gun and risk being killed because you can't defend yourself if shot at. <br />
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C. Carry a gun and risk some prison time if caught.<br />
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Unfortunately all three choices stink, so maybe D. None of the above?<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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. <br />
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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!"<br />
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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.<br />
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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.<br />
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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. <br />
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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.<br />
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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?<br />
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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". <br />
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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? <br />
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I am thankful it's not a choice I have to make. Really thankful. <br />
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<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
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</a><br />
<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com5tag:blogger.com,1999:blog-2375476714378374304.post-82633370270834291362011-02-09T19:38:00.000-06:002011-02-09T19:38:08.604-06:00Training 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. <br />
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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. <br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
"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.<br />
<br />
Almost 15 years later, I've never forgotten his answer. He said exactly that. <br />
<br />
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.<br />
<br />
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.<br />
<br />
I digress. <br />
<br />
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."<br />
<br />
We have heard about doctors who get the <i>God complex</i>. 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. <br />
<br />
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. <br />
<br />
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.<br />
<br />
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?<br />
<br />
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.<br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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. <br />
<br />
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.<br />
<br />
And now for the caveat I mentioned. Rule 1.1 of the Illinois Rules of Professional conduct reads:<br />
<blockquote>"<i>A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation</i>" </blockquote>What's that rule tell us? Not much, unfortunately. But the 2nd comment after this rule is a little more instructive:<br />
<blockquote><i>"A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. <b>A newly admitted lawyer can be as competent as a practitioner with long experience</b>. 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. <b>A lawyer can provide adequate representation in a wholly novel field through necessary study</b>. Competent representation can also be provided through the association of a lawyer of established competence in the field in question."</i></blockquote>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.<br />
<br />
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.<br />
<br />
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 <b><i>great</i></b> lawyer believes in his case so strongly that he's impervious to self-doubt.<br />
<br />
<a href="http://www.schantz-law.com/">www.schantz-law.com</a><br />
<br />
<a href="http://twitter.com/#%21/SchantzLaw">Twitter </a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com2tag:blogger.com,1999:blog-2375476714378374304.post-80518369864199765822011-01-21T15:27:00.000-06:002011-01-21T15:27:07.387-06:002010: A Review2010 was my second full year in private practice as a criminal defense lawyer. Compared to 2009, I took on about half as many cases but earned about the same amount in fees. And though I opened 50% less files, I worked the same if not more. <br />
<br />
In 2009 I handled a lot of misdemeanors (~50). In 2010, it was only 3. In 2009 I took on cases in the suburbs. In 2010, I did not. So, I definitely did less running around this year and probably spent less on fuel for my car.<br />
<br />
Starting in fall 2009, my cases started to become more complex and more serious. I don't know how it happened, either. It just did. I suppose I even welcomed it. But I was blinded by hubris. I wanted the tough cases. <br />
<br />
That was until I experienced how it feels to lose one.<br />
<br />
I liken serious felony defense litigation to playing the high stakes tables in Las Vegas. You can win big, but odds are you're going to lose big. That was my 2010 in a nutshell. I lost two very big trials. Each client ended up being sentenced to over 60 years in prison. <br />
<br />
An objective look at my performance in both trials is frustrating. I wasn't perfect. But I did the best with what I had. I believed in both cases and I argued passionately for them. I can blame the jury for one and the judge for the other but that changes nothing. Because I know I lost. And that's all that matters.<br />
<br />
At one point back in October when this year finally started to take a toll on me, I felt like running back to misdemeanor court with my tail between my legs. And why not? No one goes to prison in misdemeanor court. The majority of the cases are dismissed, which makes the defense lawyer appear brilliant to the client. But the lawyer knows better. At least I did. <br />
<br />
Compared to felony court, misdemeanor court is a world away. It might be a Chicago thing, but no one seems to take it very seriously. The arresting police officers are regular no shows, thus the easy dismissals.<br />
<br />
I guess I liked the grit of felony court. But by the time October rolled around, the grit had worn me to the core. I was one giant open sore. I became fearful of my job. And that's never good. At times I was scared to go to court because the thought of losing <i>any</i> litigation was unbearable. For a while the anxiety consumed me. It's no coincidence that this happened after the Chicago Marathon when I was injured and unable to run.<br />
<br />
Apparently running is my means of coping. When it was gone, it got ugly and fast. I stopped sleeping. I stopped eating. I stopped smiling. I stopped caring. I stopped being me. I withdrew into myself in an attempt to make sense of what was going on around me. I knew the system is broken and largely unfair. But it didn't get to me until this fall. I kept it at bay until I was no longer able.<br />
<br />
It would seem that November and December were saved for the worst to come: the sentencing hearings. Once the motions for new trials were argued and denied, it was time to add up the years. I couldn't put it off any longer. I had no more cards to play. The time had come.<br />
<br />
Walking into court for the first sentencing hearing found me fresh off a night of no sleep and completely frightened. The sentence could have been life. Instead it was two 31 year consecutive sentences. The client is in his mid 30's. It was in effect a life sentence. And somehow he was more at peace than myself. How can that be?<br />
<br />
In early December the second client was sentenced. He got 48 and 15 year consecutive sentences. He's young. He has a good appeal. I have hope. But he, too, was somehow a lot better off than his lawyer. When I saw him in the lock-up before his hearing I asked how he was doing. "I am blessed" was his answer. How?<br />
<br />
For some unknown reason, both of these clients still have enough faith in the system to believe their situations will be corrected. I, however, do not. I am too familiar with the system that convicted them in the first place.<br />
<br />
The second client had a co-defendant in his case. He was also convicted and sentenced almost the same. His attorney was a very experienced PD. I spoke with her at length before the sentencing hearing. I needed help dealing with all of this. She's been around for over 20 years. Like most defense attorneys, she's lost more than she's won. I asked her how she has managed to hang around so long.<br />
<br />
She gave me some words of advice and I will leave it there. But it was a conversation I dearly needed to have.<br />
<br />
2010 wasn't all bad. I prevented a couple of 60 year sentences. I sent a few people home that had no business being in the county jail. I also won a number of suppression motions. I probably won more than I lost. I don't keep track of statistics, however. <br />
<br />
Looking ahead to 2011 found me remembering a scene from <a href="http://en.wikipedia.org/wiki/Band_of_Brothers_%28TV_miniseries%29">Band of Brothers</a>. If you're not familiar with that title, it was an HBO mini-series that chronicled a group of men in World War II. To me, it's probably the greatest story ever told through film. <br />
<br />
During the battle of Normandy a captain finds a young private in a fox hole. The private tells the captain that he's scared. The captain tells the private that everyone is scared. Then the captain tells the private the key to survival is to accept that he's already dead.<br />
<br />
Pretty profound. But highly useful. Admitting you're dead allows you to let go of fear and actually function. Extrapolating this into my world isn't as obvious, but I've figured it out.<br />
<br />
I welcome whatever 2011 has in store for me. I have been to the bottom. And I survived it. But barely.<br />
<br />
It can only get better. <br />
<br />
<a href="http://www.schantz-law.com/">www.schantz-law.com</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com4tag:blogger.com,1999:blog-2375476714378374304.post-5232207021662780112010-12-22T22:03:00.000-06:002010-12-22T22:03:35.313-06:00Making Sense of InsanityI feel like sharing a frustration. This type of story is sadly too typical in my day to day professional life. So, I feel the need to vent a little.<br />
<br />
This summer I was hired to represent a young man. I represented his cousin in 2009. The young man was on probation and had picked up a new case, which also violated his probation. <br />
<br />
I am going to try and tell both the police and the client's version of the story together so you can see how silly this is. The police were driving down the street. They see two male blacks inside of a car with the doors open. My client was not one of the boys in the car, but was standing close by eating a piece of pizza. The car in question was his mother's. The boys inside the car were installing a car stereo.<br />
<br />
The police drive by and do nothing. My client saw them. The police came back around the corner with blue lights flashing. My client was grabbed and thrown on the back of the police car. He was frisked and searched. He was in possession of nothing illegal.<br />
<br />
The police claim they saw a burglary in progress. They allege my client was inside the car and made a "furtive" movement towards the center console when the police approached. The police searched the car. A plastic bag was found in the console. In the bag were a few live 9mm rounds.<br />
<br />
The police arrest my client but he doesn't know why. The cops ask him to give them a gun (this is very typical). If he does, they will let him go. He calls a friend who's in a gang. He tells the friend he needs him to put a gun in the alley but doesn't say why at first. The friend asks why he needs the gun and is finally told it's for the cops and to keep him (the client) out of jail.<br />
<br />
The friend takes a handgun and puts it in the alley where he was told to put it. The police go and get the gun. But the client is charged with being a felon in possession of ammunition and sent to the county jail. Because his prior felony was weapons related, this new case is a Class 2 felony, or 3-7 years in prison.<br />
<br />
I am hired after the preliminary hearing but before the arraignment. I go to the jail. He tells me the story. I appear in court at his arraignment in August. We plead not guilty. The case is continued to September.<br />
<br />
Because the client was on probation when he picked up this new very questionable case, he now has two live cases. He had a violation of probation (VOP) and the new felony because of the bullets. And the State gets to pick or elect which matter to prosecute. <br />
<br />
The State had a real problem with the new case. It was a crap arrest. It would probably sustain a motion to quash arrest and suppress evidence. If that happened the new case would be dismissed and the VOP would follow. The client would get out of jail and not go to prison.<br />
<br />
Naturally, the State elected to prosecute the VOP because it's easier for them to win. And they wouldn't have to fight me over the legalities of the new case. You might be asking: aren't you talking about the same thing? Well, sort of.<br />
<br />
The burden of proving a probation violation is merely preponderance of the evidence. Or to put it another way, more likely than not. This is a very, very low standard compared to guilt beyond a reasonable doubt in a normal criminal case.<br />
<br />
The State offered 3 years concurrent for the VOP and new case. That offer was rejected. I set the case for a VOP hearing in November. I figured I had nothing to lose. I would put my client on the stand and let him tell the judge his side of the story. I didn't want to conference the case with the judge on the new Class 2 charge because the judge would have no option but to give him 3-7 years.<br />
<br />
The November court date came. The State finally looked at the file because they couldn't figure out why we were having a VOP hearing (they are not that common). And then they remembered that fighting me toe to toe on the new case wasn't a good idea. The State answered "not ready" and the case was reset for hearing today, December 22.<br />
<br />
After the hearing was rescheduled I spoke with one of the prosecutors in that courtroom. He was 2nd in charge at the time. We tried a case against each other earlier this year. I lost. But this guy and I are very nice to each other. I told him that 3 years on this new case was total crap. It made no sense and would be a complete miscarriage of justice. I reminded him that my client helped the cops recover a gun but 4 months later, was still in the county jail. <br />
<br />
To his credit he said he would consider reducing the new case to a misdemeanor. We could plead guilty to the misdemeanor and the VOP. The sentence would be "time considered served". And the client would get out of jail that day.<br />
<br />
It was actually me that suggested this idea. I don't want my client pleading to yet another felony for something I believe he's probably innocent of. He's only 19. I fashioned what I felt was a reasonable disposition based on the questionable new case. <br />
<br />
The assistant prosecutor told me he would have to run it by his superior. A week later he called me. His boss wouldn't go along with it. Damn. Really? Ok, set it for hearing in December. We will put it on and see what happens. Fine. See you then. Wrong. <br />
<br />
Since the last court date, the judge retired. All of his cases were split up between 3 other judges. The prosecutors were reassigned. I knew the judge was retiring. But no one knew what was going to happen to his cases.<br />
<br />
Before heading to court today, I was slightly optimistic. I knew I was getting a new set of prosecutors and hoped someone would listen to reason. I even let myself think that maybe the client would be home for Christmas.<br />
<br />
Sadly, I was wrong. The new prosecutor in charge wasn't there. Neither was the judge. The prosecutor that was there hadn't even looked at the file. I took him outside of the courtroom and explained what I wanted. I was told he didn't have the authority to do what I wanted.<br />
<br />
And, oh by the way, we can't answer ready for hearing today either because it's a new file and there's no judge anyway. What little hope I had was crushed. The client actually took it better than I did. So did his mother. Some people don't expect the system to work. They don't expect fairness. They don't expect real justice.<br />
<br />
Well, I do. Or at least I once did. <br />
<br />
Let's assume for a minute that the police really did recover bullets from the car. And let's further assume they were my client's. Let's also add that this was all done via proper, lawful police work. Is all of this really worth a minimum 3 years in prison? Should the burden of proof on a probation violation really be more likely than not as opposed to beyond a reasonable doubt?<br />
<br />
Why is the law constructed so people on probation are so easily set up to fail? I am tired of the cops putting crap cases on people on probation. I see this time and time again. The police roll up, throw some guys on the car, and stick a case on the person who is on probation or parole. The ones on probation go to the county jail. They are violated and held with no bond. Those on parole go back to prison. <br />
<br />
After all, they're convicted felons. Who will believe them anyway? When they speak on their own behalf they lie. But when they come to court to testify for the State they are magically credible. <br />
<br />
What really upsets me about this case is that but for the probation violation, I could probably get this case dismissed. It's very weak. But since the client was on probation somehow the law changes and most of his constitutional protections are thrown out the window. <br />
<br />
And I don't get it.Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com0tag:blogger.com,1999:blog-2375476714378374304.post-68634871592350343732010-11-30T14:31:00.000-06:002010-11-30T14:31:02.983-06:00Keeping The FaithI 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.<br />
<br />
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.<br />
<br />
I <a href="http://schantz-law.blogspot.com/2009/11/defendant-advised-not-to-proceed-pro-se.html">wrote</a> 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. <br />
<br />
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?<br />
<br />
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.<br />
<br />
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. <br />
<br />
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.<br />
<br />
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. <br />
<br />
I <a href="http://schantz-law.blogspot.com/2010/07/when-incredible-is-credible.html">wrote</a> 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. <br />
<br />
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. <br />
<br />
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.<br />
<br />
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. <br />
<br />
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. <br />
<br />
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.<br />
<br />
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. <br />
<br />
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.<br />
<br />
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. <br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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. <br />
<br />
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.<br />
<br />
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. <br />
<br />
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.<br />
<br />
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. <br />
<br />
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.<br />
<br />
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.<br />
<br />
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. <br />
<br />
<a href="http://www.schantz-law.com/">www.schantz-law.com</a> <br />
<br />
<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com3tag:blogger.com,1999:blog-2375476714378374304.post-84374326682241449252010-11-18T15:05:00.000-06:002010-11-18T15:05:44.979-06:00Good Conduct Credit and Fuding a Prison SystemIn Illinois, the Department of Corrections answers directly to the governor. Thus, by and large, the prison system runs itself. They have the power to create and administer their own rules and procedures with very little oversight.<br />
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When I started in this business I was shocked to find out just how fast some people were being released from prison. It's not that I am into long prison sentences. I think there's too many non-violent offenders in prison. But as a citizen that didn't know any better, I was pretty amazed. <br />
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For a very long time, a 1 year prison sentence was in reality only 61 days. You could be home in less than 1 year when sentenced to 3 years. Therefore, a 1 year cop-out for a pistol or a little dope was pretty tolerable to defendants facing longer sentences. I have seen so many delivery and possession with intent to deliver cases (normally Class 1 felonies, carrying 4-15 years) reduced to Class 4 simple possession, which has a sentencing range of 1-3 years. <br />
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This is the type of deal making I often encounter. Deal making in criminal cases is not unique to Chicago. It's a nation-wide phenomena. Some criminal lawyers in other jurisdictions call a plea deal a <i>settlement</i>. I choose not to, saving the word <i>settlement</i> for civil cases. I call them negotiated plea deals. But it's the same thing. I really dislike a case that from day 1 is headed to a plea deal. But some cases are dogs and have to be dealt. <br />
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Typically a case is charged as a very high felony. In my opinion a lot of cases are overcharged, meaning the evidence supporting all elements of the charge is on the weak side. Or at least there's a lot of argument to be made. The State will often dangle the carrot of a reduced charge in exchange for a plea of guilty. This keeps conviction rates high. The prison system full. And the adult probation department busy.<br />
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In other words, this system keeps a lot of people employed while largely preventing the unfortunate defendant from ever getting gainful, legal employment for the rest of their life. Talk about a circle of poverty. But that's for another post.<br />
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Earlier this year, a convicted felon who had benefited from the IDOC early release program committed some heinous crime while on parole. The press got wind of IDOC's program and a politically explosive story ran. Everyone ran for cover and the governor's office claimed they didn't know about it. Within a week, the person who ran IDOC resigned but everyone knew he was really sacked.<br />
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As part of the Illinois State Bar Association's Criminal Justice Committee, I have been asked to review proposed legislation and vote to oppose or support it. In the past 2 weeks, I have reviewed close to a dozen bills and have supported only a couple. Why? Well, they are largely political and designed to cover politician's asses, and thus a waste.<br />
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In the Illinois Criminal code, good conduct credit is described (see 730 ILCS 5/3-6). Even absent the IDOC's rapid release policy (which was not in the statute), most prison sentences are actually half the time given. We have this thing called <i>Day for Day Credit</i>, which means for every day of good conduct, an inmate gets a day knocked off his sentence. This is called good conduct credit. You can also get 60 days knocked off a sentence for earning a GED while in custody. <br />
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Here's an example of how this would calculate today: a defendant is sentenced to 2 years in prison for a non-violent crime. When he gets downstate they will immediately subtract the time he spent in the county jail. Let's say that was 6 months. Now the sentence is 18 months. Split that in half, and you're looking at 9 months of real time.<br />
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The more violent crimes are served at 85% of the sentence. And murders are 100%.<br />
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I never really wondered how IDOC landed on 61 days for a 1 year sentence. It does seem like a strange number since it's odd. But I never asked why it was 61 days. Last week, I might of found out why 61 was the magic number.<br />
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I have no source to prove what I was told, and I don't care enough to look for myself. However, it's food for thought. I was told for fiscal purposes, an inmate has to be in the penitentiary system for at least 61 days before IDOC is credited for having him incarcerated.<br />
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Credited by whom you might ask? You figure it out. But here are some shocking numbers. <br />
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At the close of 2009, IDOC had a prison population of about 45,000. In the same year, IDOC claims it spent $1.1 billion in operating costs. According to IDOC's 2009 Financial Impact Statement, it costs on average about $25,000 per year to keep an inmate incarcerated. This is big money.<br />
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Also in 2009, almost the same number of people were paroled as freshly locked up. That seems a bit odd to me. It's awfully convenient. And there's more people locked up for drugs than anything else (20.7%). Murder comes in second at just under 20% and sex crimes a distant 3rd at 10%.<br />
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In its October 2010 report to the Illinois legislature, IDOC expects to increase in population at a rate of 3% annually. Thus within 2 years, it's predicted IDOC will have 50,000 inmates. Assume the annual cost per inmate remains the same (it won't), that's an estimated annual budget of $1.25 billion. Compared to $1.1 billion, the increase seems negligible, but in reality it's an increase of $150 million.<br />
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I know throwing around numbers in the billions and millions is often hard to grasp. How much money is that? Here's a calculation you might understand. Let's assume you worked a full-time career job from age 25 to 65. That's 40 years.<br />
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Assume you have a high paying job and the salary is $150,000 a year for the first 10 years and then increases $25,000 per year every ten years. With these generous salary numbers you would earn $7.5 million before taxes over 40 years. Assume 25% taxes and you're left with $5.6 million. Your lifetime net income would be over 20 times less than the current IDOC annual budget.<br />
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It should be clear, Illinois spends a lot of taxpayer money keeping people in prison. <br />
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Compare these figures with the 2010 Illinois State Education budget. The 2010 budget is $11 billion with just over $3.5 billion of that coming from the Federal government. According to the Illinois Board of Education, the annual cost per student is just over $10,000.<br />
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Therefore, on an annual basis, the state of Illinois spends over 3 times per inmate than public school student. The number is really more staggering if you consider that the majority of public school funding is derived from the local tax base as opposed to state funds.<br />
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Only about 80% of Illinois public school students pass the 8th grade reading and math exams. The number plummets to just over 50% at the 11th grade level. <br />
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Am I the only one that sees a tremendous problem with these numbers?<br />
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Running prisons in the United States is big business. I think I might have written this before, but our country has 5% of the world's population but 25% of its incarcerated adults. Every 1 out of 4 adults locked up in the world is in a U.S. prison. <br />
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I think that spending tax payer money should end up bringing about a benefit to the tax payer. That's pretty simple. Ask yourself how you benefit from having so many people sitting in prison. The argument is that it makes society safer. For violent offenders, I agree with this argument. But I think the numbers would show nationwide, non-violent drug offenders make up 20-25% of state prison populations.<br />
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In my opinion, drug addiction is the real problem. Anti-drug laws are the reason drug addicts are in prison. Are the laws working? Absolutely not. They are making us spend more money in the long run. We don't need more police officers, we need less people addicted to drugs.<br />
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I wish I had the answer. I really do.Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com2tag:blogger.com,1999:blog-2375476714378374304.post-29716788198474264662010-11-03T15:05:00.000-05:002010-11-03T15:05:22.496-05:00A Critical View of Today's AmericaYesterday was election day here in the United States. I haven't looked yet, but I don't think it went well for Democrats. I didn't vote myself. In a large way, I have given up on American government on both the State and Federal levels. <br />
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The Constitution was crafted from pure brilliance. It's an amazing document. But our current government has to be light years from what the framers could have ever imagined. How did a country founded with such noble intentions end up where it is today? I will give you the answer shortly.<br />
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In my opinion, the main problem with the current government is that it's corrupted. I am not necessarily talking about corrupt politicians, although there's plenty of those to go around. The American political system itself is corrupted because money can create, alter, or block legislation. It's that simple.<br />
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I believe that the majority of Americans that get into public service via elected government positions probably do want to help and serve. But it's almost impossible to get elected without money. And unless you're just rich, donations must be sought. No one with a large purse is going to give a candidate money blindly. Something has to be in it for them if this person is elected.<br />
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This type of <i>quid pro quo</i> has probably been going on in this country on some level since its creation. Currently, however, it's out of hand and should be stopped. <br />
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I almost completely stopped watching the news during the run up to this election. The political coverage was the same old thing day after day. Democrats blaming Republicans. And Republicans blaming Democrats. While all this finger pointing is going on and putting Americans to sleep, big business is behind the scenes manipulating the media while attempting to gain political strength on the hill. Business as usual.<br />
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How many new pieces of legislation at the Federal level in any given year actually have a positive effect on the average American? I doubt very many. Compare that to how many help the rich get richer, be it corporations or individuals. Probably more. <br />
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Who in Washington with any money to spend is lobbying congressmen for more drug abuse treatment centers? Who is lobbying for better schools? I am sure there are some out there writing letters and perhaps even gaining appointments with their local congressmen, but are they getting anywhere with no money to spend? Large amounts of money only go into lobbying if large amounts of money can reasonably be expected from the investment. That's common sense, right?<br />
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By the last paragraph you might dismiss me as a liberal that's just whining about yesterday. I don't normally discuss my political views broadly, but I will for purposes of this post.<br />
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Let me preface by saying that normally a person's political beliefs are largely shaped by their core values that have been instilled in them since childhood. These beliefs are sharpened and perhaps slightly altered with aging, education, and real world experience. But because one's basic values are so ingrained, it's very hard to change someone fundamentally in their basic political beliefs. <br />
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That being said, I support a large number of historically labeled Democratic social programs. If you grew up with money and never needed help from the government to buy food, such a program might be easily dismissed. However, during my childhood my mother had to be on welfare for a short time. We had no money. No food. No job. I clearly remember the food stamps and what they looked like.<br />
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Thus, I support welfare programs as a means of temporary assistance. But I do not support welfare blindly for life. It breeds laziness and increases poverty. I also benefited from veteran's education programs. Naturally, I support any program that helps Americans help themselves. <br />
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On the other hand, I am a fiscal conservative and prefer a smaller, more efficient government. I think businesses should be able to run themselves without Uncle Sam getting too involved. There should be a framework of rules and regulations as is industry necessary. In other words, I think Wall Street needs oversight and a lot of it. The tire store down the street, not so much.<br />
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Clearly, I am neither Democrat nor Republican. If you blindly align with a political party 100%, you've lost the ability to think independently and are part of the problem. <br />
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It is my belief that the United States peaked across the board shortly after World War II. Since that time our status as a world super power has gradually decreased. Family and moral values have evaporated. Our global influence has been on a rapid decline in the last 10 years. The dollar has weakened. And we have had to borrow money from countries like China.<br />
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Like it or not, I believe China will be the next world super power. They are currently implementing the infrastructure to accomplish this. And their economy has shown steady growth. It might reach 10% this year, whereas the U.S. might not reach 3%. Once the Chinese government lifts some restrictions in the private sector...look out. China also claims to have generated 22 million jobs since the current global financial crisis began. <br />
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The Chinese government credits the $568 billion stimulus it injected into its economy for the growth in jobs. Didn't we do something similar? Why is our unemployment rate still around 10%? I think it's because the U.S. had to bail out financial and insurance companies and the auto industry. What was supposed to trickle down to main street has been tied up in congress because our elected leaders are fighting over it. Politics as usual and the ordinary American is getting screwed. <br />
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The Chinese government has placed its primary focus on education, jobs, economic growth, and industrial leadership. In 2005, China awarded more than twice as many engineering degrees as the United States. And China leads the world in green energy technology.<br />
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What are we doing? Fighting over health care and gay marriage. The world is passing us by at a steady rate and our own arrogance prevents us from even acknowledging that it <i>might </i>be happening when empirical data shows it actually <b><i>is</i></b> happening. <br />
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Please don't label me as un-American. I served my country. I pay my taxes. I have done more for this country and for my fellow countrymen than most. But I am saddened because I see before my own eyes a once great country being consumed by its own greed. <br />
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The problem I alluded to earlier that has been the cause of our slow decline is simply greed. Americans want it all rather than what we really need.<br />
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We also have our priorities skewed. Shouldn't people be paid by how they benefit society? This sounds mildly communist, but bear with me. Don't teachers have a profound impact on our youth? Isn't there a compelling American need to insure more of our children go to college and earn professional degrees that can advance our country globally?<br />
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If so, then why do we pay teachers so very little while we pay a man $ millions to throw or hit a ball? Why are top researchers in universities across the country having to fight over small research grants to advance medicine while bankers give themselves $ million dollar bonuses?<br />
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Why did it take September 11, 2001 to unite this country? And why did the executive branch of the government at the time use such a profound event as a political scalpel that allowed it to run a reckless foreign policy through the Middle East? How much money did we spend in the Iraq war? $ Trillions. What did we as a nation gain from it? Little.<br />
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Some U.S. corporations, however, profited immensely from the war and we paid for it. Who were these corporations? Who were they associated with in the government at the time? In the end, who profited the most from the Iraq war? I can tell you it wasn't U.S. citizens as a whole. Go find the answer for yourself. <br />
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There is way too much divisiveness today. The prevailing <i>Us v. Them</i> mentality is only hurting us. The rally around 9/11 was brief because it was politicized. Americans across the country complain about lack of jobs, but as a nation we can't agree on a means to fix it. Why? Because our elected leaders are just playing tired old party politics. Every first term congressman wants one thing: a second term.<br />
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Consequently, no real progress is achieved. The politicians give short interviews dropping key words to stimulate their support base. Pundits offer commentary. Fingers are pointed. And the average American is fooled because they never look below the surface for the real story.<br />
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Have you ever tried to discuss a current political issue with someone that simply repeated what they heard on the news rather than offer their own thought? It's very frustrating, thus I don't generally discuss politics. People get way too heated about an issue they really know nothing about.<br />
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It really doesn't take much of a story to convince our citizens because we blindly believe those in charge. Most are too easily swayed by what they hear on TV. This has to stop. Elected officials have to be challenged and called out, not reelected. Party politics has to end and Americans have to get educated and think for themselves.<br />
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It would also serve us well if the average citizen started thinking every now and then about what's best for America rather than what's best for themselves. Too many people think they're entitled to something. I say you're only entitled to opportunity. It's up to the individual to use that opportunity to its fullest. If you sit on your ass all day, you deserve to be poor. If you work your ass off all day, you're entitled to a living. Easy. <br />
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If you're an American and don't fit the profile I have described here, I mean no disrespect. I wrote in some generality here based on my own observations and thoughts. But I don't think anything I suggested is impossible to reasonably support without much effort. But, they are my beliefs. Whether I am factually accurate or not either remains to be seen or cannot be ascertained. If you hold contrary beliefs, that's your right. And I respect that. <br />
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On its face, the idea of being a politician is appealing to me. I have always felt the need to serve others. I like helping people. But I am not willing to sacrifice my integrity to get my foot in the door and keep it there.<br />
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I just went and peaked at CNN. It's funny but the Republicans that won yesterday are saying the same types of things the victorious Democrats said in 2008: The people want their country back. They want jobs. They're tired of the sluggish economy. They're fed up.<br />
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We just changed the make-up of Congress 2 years ago. And it didn't fix much. Who's to blame? <i>Everyone</i> is to blame. Both parties. The White House. All of them. The Democrats had control of the House, Senate, and had a Democratic President in the White House. What do they have to show for it? A health care bill that no normal person can make sense of.<br />
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I don't care who you elect. If the system is broken it doesn't matter who's in power. Nothing is going to get done.<br />
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I say fire them all. Start from scratch. And ban lobbying. That would be a good restart. Do some research. Find out who spends the most money on the hill and ask yourself if you're in anyway benefited. Due to recent laws, there's a lot of transparency when it comes to lobbyists. The data is there, but you have to look for it.<br />
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See who is spending the most money and ask why?<br />
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I can almost guarantee that it's to make more money. Is this greed at work or just corporations answering to their shareholders? Is there really a difference? Opinions vary. <br />
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I will not turn into an extremist, call for the overthrow of the government, and join a militia. While that may, in some corners, be considered patriotic, I think it's misguided and futile. The only way the government will change is if the people demand it by refusing to accept the <i>status quo</i>.<br />
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The notion that special interest has corrupted American politics is not new. But I fear that the majority of Americans aren't even aware of it's existence and how toxic it is.<br />
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We need more awareness, not more apathy. That is ironic for me to write since it was my own apathetic attitude that prevented me from voting yesterday. But I see no logic in taking part in a broken system. <br />
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I am not afraid to call myself out, however. But I am so tired of these people on TV claiming they are speaking for the American people. Do they really speak for you?<br />
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They don't speak for me, thus I write separately and respectfully dissent.Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com1tag:blogger.com,1999:blog-2375476714378374304.post-34436269729372613672010-11-01T19:16:00.000-05:002010-11-01T19:16:39.471-05:00My Recent Absence ExplainedSome of you that follow me on Twitter have expressed some concern because I have been absent for the last week. A couple of you have emailed me directly or sent direct messages to insure I am still alive. Even my mother has been worried since she tracks my days via Tweets. If I don't Tweet, she thinks I am dead. <br />
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I am alive. That much I can vouch for.<br />
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So what's going on? In keeping with the spirit of openness as found in most of my blog postings, I will be completely honest with those that want to know.<br />
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The main problem is that I am injured and cannot run. Some of you might that's really lame. But running is how I handle work and life stresses. It's running that allows me to cope with the daily grind that is my small, little law practice. <br />
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It's almost as if running creates a barrier that keeps sadness, frustration, anxiety, despair, and depression at bay. Remove the barrier and it gets ugly. I am not sleeping well. Case after case consume my consciousness. I have small panic attacks thinking about the enormity of a couple of them. I have to calm myself down and break the case down into small manageable tasks.<br />
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As soon as I am relaxed about case A, case B walks in the door and the process begins again. Usually by 4:00 am, I shut down for a couple of hours. But after a week of this, I was a mess. I am now taking prescription sleeping aids, though it's only been since Friday. It's also during times like these that I have very violent nightmares that always somehow tie in with work. <br />
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Another component in play is lack of sunlight. I suffer from fall and winter blues due to lack of sun. Almost every summer afternoon I was running shirtless at the lake soaking up sunlight. In my world, that is a perfect afternoon. I am really that simple.<br />
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My favorite thing to do this summer was a mid-afternoon 10 mile run followed by 15 minutes on my patio. I would sit there dripping in sweat, stoned on runner's high endorphins slowly sipping Gatorade and reading my Twitter stream on my phone. Sadly, that scene will not return until at least next May. Ugh.<br />
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All of this stuff together has dipped me into a mild depression. I have been here before. And typically I withdraw from social activity until I feel better. As lame as I feel about admitting this, Twitter is pretty much my social universe.<br />
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It's with my Twitter family that I share career successes and failures. A fellow criminal defense attorney in Miami, who shall remain nameless, recently wrote that Twitter is a conversation. I agree. Or at least that's how I use Twitter. I don't market myself on Twitter or really on the internet for that matter. I have a website but I don't think it draws clients. <br />
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Twitter simply allows me to communicate with other attorneys across the country and most of them are also in the criminal business. Some of them have blogs that I follow. We share war stories. There is also a small number of law students I chat with. And a few other random people who are interesting to me for one reason or another. Journalist <a href="http://twitter.com/#%21/jakeadelstein">Jake Adelstein</a> , being one of them. <br />
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The last time I had a group of friends I hung out with was when I lived in Austin immediately before law school. Since then I am changed. My prolonged illness during law school turned me into a pretty quiet person. I am ok with being alone. Sometimes I prefer it.<br />
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Besides my mother, there's only one person in my life I am close to. I am not a social retard, however. I make small chat with people I encounter during my work day: clerks, deputies, clients, judges, attorneys, coffee baristas, etc. I am friendly and smile often. Anyone that sees me with any regularity will tell you I am about as nice as they come. <br />
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But I am just not the type to go hang out these days. I don't drink much and I prefer to watch sports at home. Twitter happened by accident and slowly grew into a social network of people that I can communicate with on my terms. Well, mostly. I have directly helped other attorneys via Twitter. And other attorneys have directly helped me.<br />
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I think it's safe to say that my small Twitter community of fellow criminal defense attorneys helps each other indirectly every day by being supportive. We all express sympathy when one of us has a bad day and we join in the celebration of victories no matter how small. To keep things light, we often tease and pick on each other. <br />
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Rather than be a negative Nancy because I am not feeling well, I chose to leave the party for a while. If I have nothing positive to offer my followers, than I am pretty much useless to those that have some token of interest in me. And if you read my <a href="http://schantz-law.blogspot.com/2010/11/sad-state-of-affairs.html">posting</a> from this morning, it's clear I am not a real positive person today. <br />
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I am feeling pretty damn beat up in all honestly. The work is getting to me. I admit it. The stories are extremely sad and real justice is way too elusive. But I am taking all reasonable corrective measures. I am still working out daily. I am hitting the tanning booth a few times a week to get some fake sun (and yes, this does help). I am eating. I am taking medications to help my sleep and my mood.<br />
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Naturally, I am still working. But I got the crap beat out of me last week in court on Monday and Tuesday, which just made things worse. Everything I touched turned sour. <br />
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I have always believed that a person's true character can only be measured in a time of adversity. It's how we deal with the bad times that count. Easy living is just that. I was trained in the military to keep driving on no matter what. Keep on, keeping on. That's my life. I just keep going.<br />
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We criminal defense attorneys swim neck deep in an ocean of adversity. It's part of the job. So, don't feel sorry for me. I chose this profession. I asked for this. And I got it. But I admit, in some ways it was more than I bargained for. I had no idea it was going to be this sad and frustrating. But on the other hand, I had no idea it would feel as good as it can when things go well.<br />
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It's something special when the jail doors are sprung open as a result of my work and someone dearly missed is returned to their family. It's an amazing feeling. And probably why I do this. It's nice to play hero every now and then. I admit it. <br />
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Keeping things in perspective, I have about 30 files of people who have much, much bigger problems than myself. Thus, I won't be sitting around whining because I don't feel really well right now. <br />
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So for those of you who did express some worry or noticed my absence, I say thank you from the bottom of my heart. I am ok. I will be back soon. It's all good.<br />
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Besides, there's nothing that a week in the Caribbean can't cure. Or at least mitigate the hell out of.<br />
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Sincerely,<br />
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MLSMarcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com2tag:blogger.com,1999:blog-2375476714378374304.post-50459884342369856602010-11-01T10:48:00.000-05:002010-11-01T10:48:12.896-05:00Sad State of AffairsRecently it appeared that shootings here in Chicago had slowed down. Or at least the reported ones anyway. I was also seeing less arrests for aggravated battery as well. This is what a suspected shooter is initially arrested for. If indicted later, it's usually for attempt murder.<br />
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A reduction in violent crime usually arrives with cooler weather. Summer is long gone. But it's still warm enough to be outside. <br />
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This last weekend saw the violence return. And it was all over the city. Well, mostly. I think no less than 30 people were shot this weekend and about 7 of them died. These were just the ones reported. From past discussions with area detectives, I know that usually only 50% of violent crimes get any press. An Area 2 detective (Calumet Area) told me they catch about 6 bodies on a warm weekend. Area 1 and 5 have to be similar but I bet Area 5 (West side) has to get more. <br />
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We also had some fatal car accidents. And one 23 year old teacher fell to her death while trying to slide down a stairway at a downtown Hilton hotel before a Halloween party Saturday night.<br />
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The families of the murdered will get no compensation. The murderers may never be brought to justice. But I have a feeling the family of the deceased teacher will find a lawyer who will sue Hilton for having unsafe stairways in their hotel. But I am not commenting on either situation. Perhaps the stairs were indeed unsafe. I don't know. <br />
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Is any one death more tragic than the rest? I think everyone who died was under 30 years of age. A couple were even teenagers. Sad all the way around, I think. But I know that some people will think the death of the white, pretty, blond teacher with a great smile was a greater travesty. She was obviously college educated and employed. Surely she's worth more than some 19 year old South side black male with no hope or future, right?<br />
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The problem is that, somewhere, thinking like this lurks. And it's not widely scattered. It's real. Just as racism is real. And it scares the hell out of me because people who think like this have the right to vote. <br />
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Meanwhile Chicago police made 35 South side arrests in a narcotics enforcement sweep. They also confiscated 18 guns, $18,000 worth of narcotics, and $11,000 in cash. Go Blue. I wonder if I will be hired to represent any of the 35 recently arrested? Or if I might be hired to defend someone arrested for one of the weekend shootings or murders?<br />
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How many illegal guns are here in the streets of Chicago? I bet the number would blow me away. Have you ever heard how many insects could be found in a square mile of dirt? Isn't it like 4 billion or something ridiculous? <br />
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How many illegal handguns are in the city blocks between Central Park & Austin from East to West and say Jackson & North Ave from South to North? It has to be in the thousands.<br />
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The only difference I see between our current city streets and the Old West is that way back then, guns were not often concealed. They were carried in holsters on the hip so everyone could see it. It was cowardice to shoot a man in the back. But some men were still blood thirsty. Not much has changed.<br />
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Neitschze wrote that our violent dreams are a reminder of our violent past. But he was speaking in terms of human social development, not about an individual. Thus, violent dreams were merely a relic of the human condition thousands of years ago. I think logically, he felt humans had become more civilized over time. I agree. Mostly.<br />
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I don't know why some people are just violent. I was never a kid that liked fist fights. Getting punched in the face hurts and punching someone with a fist hurts the hand. Sure, I was in fights as a child and young adult. But I never enjoyed one.<br />
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I have known people who love fighting. And I tried to never go out drinking with them because a bar fight was never too far away. I didn't go to bars to get in fights. I went to talk to girls. Duh.<br />
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Though our legal system discourages violence, our social system applauds it. Think about that for a minute. Think about movies. Think about video games. Think about music.<br />
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You might think I am going to go off on some purity crusade that would make a Quaker or Mormon proud. But you're wrong. I am just calling an Ace an Ace. So much of American culture is about hurting and/or even killing others. As a country that's not terribly old, we have a violent past. Our country was established by way of violence. And clearly, we like a good war every 10 years or so. <br />
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When I was a kid we had video games like Pac Man and Asteroids. There was no simulated death via video game. Killing humans was not entertainment. Movies were violent, however. The Taxi Driver was about as violent as it got when I was a pup.<br />
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But our music certainly wasn't violent like today's. Why are we celebrating being a Thug? Why was 50 cent worshiped because he had been shot several times and been to prison? Why did we as a country collectively allow this to be socially acceptable? Why are suburban white kids talking like they're black and from the inner city?<br />
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Do black people as a whole get royalties from white impersonation? No. What happened is that once again, blacks, in part, were exploited by white people for financial gain. The record companies recognized a huge market for hardcore hip hop. And I have been here for the entire show. <br />
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I remember hearing NWA's <i>Straight Outta Compton</i> for the first time. It was 1989. I was in the Army stationed in Hawaii. I met a couple of girls from Los Angeles in Waikiki one day. They told me about this new rap group and wanted to play me the tape.<br />
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I couldn't believe what I heard. <i>Fuck The Police</i>. Really? No, they didn't say that. Oh yes, they really did say that. A couple years later, Ice T came out with <i>Cop Killer</i>. That one caught some attention. And I think it was eventually pulled from future pressings of the album.<br />
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But clearly this new rap was a bit different from Run DMC and the Fat Boys. These guys were rapping about being armed and pissed. Not a good combination. The lyrics were so real. Drug addiction, welfare, police brutality, murders, gang life, no education, despair. It was things I knew about but had never heard put to music before.<br />
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These artists had something to say and it was real but very sad. Instead of society as a whole attempting to help people who experience the type of life that spawned such lyrics, some made money off of it.<br />
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About the same time <i>Straight Outta Compton</i> was being made, the movie <i>Colors</i> was released. Produced by Dennis Hopper, it starred Robert Duval and Sean Penn as Los Angeles police officers working in a gang enforcement unit. It largely introduced America to the <i>Crips</i> and <i>Bloods</i> street gangs. It was a controversial film that I think was largely ignored. Most of middle America thought the violence was way overplayed in the movie. Ironically, the violence was actually underplayed. The streets are way worse than that film portrayed. <br />
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The condition of the inner city black male was exploited for profit. But, at the willingness of the black inner city artists. They got paid too, but no where near as much as the record companies. Yes, the artists were willing participants in the exploitation of their brothers.<br />
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Overnight gangsta rap was <b><u>IT.</u></b> I remember a Christmas from my past so clearly. It had to have been 1993 because Dr. Dre's <i>The Chronic</i> had already been out for a while. That was released in December of 1992.<br />
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I was in Athens, IL. It's outside of Springfield. Though Springfield is the state capital, it's pretty hick compared to Chicago. Athens is even more white bread, if that's possible. I had a young cousin living in Athens who would have been about 16 or 17 at the time. I hadn't seen him in a couple of years.<br />
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I walked into his room. My other cousin was in there too. He was the same age. On the wall were posters of giant Marijuana leaves and hip hop artists like Dre and Snoop Dogg. I found it a tad disturbing, but I had <i>The Chronic</i> and liked it. I am not a hypocrite. <br />
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When these kids opened their mouths, however, I was stunned. All I heard was "Nigga" and "Bitch" sprinkled between "F bombs". They were wearing pants that were pulled down to their knees and I could see their boxers. They looked ridiculous and sounded even worse.<br />
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I grew up in a black neighborhood. I had been around black people my entire life. I had more black culture instilled in me than some blacks. And here were my two ignorant white cousins who would never drive a car through my old neighborhood, acting like hardcore street thugs.<br />
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After about 5 minutes, I turned around, walked out, and shut the door behind me. I was completely disturbed. I had wanted to smack the crap out of both of them. More than once each too. Though neither of those cousins is dead or in prison, they have both had their share of run-ins with law enforcement. Whereas myself, who grew up in crime-ville, has never been arrested and has had 2 speeding tickets in 23 years of driving.<br />
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From there it just got worse. Hip hop became mainstream and the artists just got more Thuggish. Then the East Coast/West Coast crap started. Tupac was murdered. Biggie Smalls was gunned down. The Source awards got nasty in 2000. And even Jam Master Jay from Run DMC got killed in 2002. <br />
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The two main record labels producing hardcore rap and central in the West/East rival, were Suge Knight's <i>Death Row Records</i> and Sean "Puff Daddy" Comb's <i>Bad Boy Records</i>. Both Knight and Combs are black. Knight went on to go to prison. Combs is in movies. So it wasn't just whites profiting off of blacks. Brothers were pimping brothers and getting rich in the process. <br />
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What happened to Atlantic and Motown?<br />
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All the while mainstream American youth is gobbling up this stuff unchecked. People in the music business got richer and richer. But inner city blacks, from where all of this originated, remained poor, disenfranchised, and stricken with violence. <br />
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What kind of world do we live in where it becomes acceptable and cool to mimic and even profit off those that have it the worst? Why are children across the country, of all races, idolizing people who couldn't get a job at McDonalds? Where has our sense of value gone? Have our morals evaporated suddenly?<br />
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What the hell is going on?<br />
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If anything the thug/gangster culture has exposed the country to the real problems of many inner cities. But who is doing anything to solve them? No, we just keep producing more videos with more rappers with more gold teeth and more tattoos and more scars and more money and more women and more felony convictions. <br />
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But the music is so watered down and uninspiring. I like old hip hop when the artists had a message. And the message was on point and relevant. Now it's just about money, the great spoiler of genuine noble intention. <br />
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In a very roundabout way, this brings me back to our street violence here in Chicago. If a hugely profitable market could be created by producing commercial media based on inner city plight, why can't we fix it?<br />
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I don't think the kids stuck here in the streets think they have a cool or glamorous life. Most of them carry guns to keep from getting murdered. And if you have mouths to feed and slinging dope is the only way to earn money, is there really a choice? A man does what he has to do to handle his business. And sometimes what he has to do runs afoul of the law.<br />
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I am not giving a blanket pass to people I work for. But I will be damned if I just label them all as lawless villains who have no respect for authority. My work is extremely sad because I see the tough choices so many of my clients are forced to make. And too often I have to admit to myself that, if in their shoes, I probably would have done the same thing. There is no right or wrong. It's which shade of wrong do you prefer. <br />
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The real problems are drug addiction and poverty. One feeds the other in an endless cycle that effects the community as a whole. Until those that control the power of the purse really make an effort to relieve these problems, there's no end in sight. I will have a job forever.<br />
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And that, is a sad state of affairs.<br />
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<a href="http://twitter.com/#%21/SchantzLaw">Twitter</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com1tag:blogger.com,1999:blog-2375476714378374304.post-6021626257552303792010-10-27T18:28:00.100-05:002011-01-31T14:25:47.583-06:00Lawyering for LibertyBefore 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.<br />
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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. <br />
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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?<br />
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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.<br />
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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.<br />
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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.<br />
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I have <a href="http://schantz-law.blogspot.com/2010/05/civility-of-criminal-court.html">written</a> 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.<br />
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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.<br />
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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$$hole. No one does those folks any favors.<br />
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We are all expected to be professional, respectful, and courteous. I don't have a problem with that. A few do, however. The a$$holes.<br />
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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.<br />
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I recently watched the first episode of the new NBC series <i>Outlaw</i>. 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.<br />
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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.<br />
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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.<br />
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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?<br />
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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.<br />
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Hmm. That doesn't pass the sniff test either. Does it?<br />
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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.<br />
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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. <br />
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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.<br />
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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. <br />
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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.<br />
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When the rubber meets the road, however, I am the only person in the courtroom working on my client's behalf. <i>Innocent until proven guilty</i> 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.<br />
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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.<br />
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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. <br />
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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.<br />
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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.<br />
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At the end of the day, however, the client's interest must come first. <br />
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<a href="http://www.schantz-law.com/">www.schantz-law.com</a>Marcus Schantzhttp://www.blogger.com/profile/01100081670915382047noreply@blogger.com0