Chicago Criminal Defense

Belief In a Tough Case & The Trial

2011-09-07T17:36:00.000-05:00

In 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.

This was no longer a typical phone call. I think I remember sitting down.

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.

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.

Then I Googled his name to see if there was a news story. There were several. Here 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 picture of Kenneth Green didn't make a good impression. He looked mean. He looked how I imagined someone that shot cops would look.

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 The Silence of The Lambs, where they kept Hannibal Lecter locked up.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.

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 not guilty. No, a jury trial was the only option. I just needed a good jury. I needed jurors who would do their job.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 Trial Handbook for Illinois Lawyers (Criminal Edition). This is an absolute must have if you try cases in Illinois. A must have. All three volumes of the Illinois Pattern Jury Instructions (Criminal) were open and scattered about my place.

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.

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.

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.

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.

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.

On Monday morning we went to court. Here is how we looked.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

But when I stood up to close, I no longer noticed anything or anyone but the jurors. I already wrote about my closing argument here. 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.

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.

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.

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.

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.

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.

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.

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.

The judge handed the forms to the clerk and asked her to publish the verdict. The clerk read 8 Not Guilty 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.

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.

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.

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.

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.

We walked to a pub down the street from me. Here we are....

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.

At 10:30 pm, my phone rang. It was Kenny. He called to say thanks 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.

I slept well that night.

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A Closing Argument

2011-09-04T17:41:00.004-05:00

From my most recent trial...

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

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

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

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

Just thought there might be some interest.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more about this case here.

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Where's His Lawyer?

2011-07-01T09:51:00.000-05:00

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.

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 Miranda rights were violated or that the statement was not voluntarily given.

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 Miranda 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.

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 Law and Order, 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.

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.

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.

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.

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 legal lynching. Yes, I said exactly that.

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.

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.

Miranda 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.

But the crux of my argument in this case was not Miranda. It's really hard to get a judge to buy that no Miranda warnings were given. I felt the 6th Amendment right to counsel should have been triggered. I've also written about the differences between the 5th and 6th Amendments and the right to a lawyer.

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.

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.

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.

I think the judge actually bought my argument because he said "I can find no authority today, to support your argument."

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?

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.

Who that understands that, still talks or signs a confession? I don't think many.

The beginning of my proposed warning sounds pretty similar to Miranda. But I feel the understanding of the right to remain silent is trumped by the need to understand the real consequences if you talk.

"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.

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.

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"?

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?

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.

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Justice Served, Finally

2011-05-17T14:52:00.000-05:00

Last June I wrote 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 barked 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:

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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 not guilty. 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.

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.

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.

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. Mission complete, I thought to myself.

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.

But for the criminal defendant, just one: his lawyer.

www.schantz-law.com

DWB: Driving While Black

2011-05-16T14:09:00.000-05:00

Everyone has heard of DUI or DWI. But have you heard of DWB? Driving While Black 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.

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.

Driving around with contraband (drugs and guns) in your car is what we call Riding Dirty. 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.

I can't count how many cases I've handled that began from a traffic stop for Driving While Black. 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.

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.

Should the person pulled over not be riding dirty, he gets to drive away. No harm, no foul.

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.

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?

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.

If the police can pull over a car simply because some black people are in it, then the 4th Amendment is 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.

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.

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.

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.

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.

We on the losing team seem to think personal rights actually mean something and should 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.

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.]

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 am sorry you're black. And I am really sorry you're soon headed downstate for a while.

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.

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.

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.

If ever so briefly.

www.schantz-law.com

Now that Bin Laden is dead....

2011-05-02T16:23:00.000-05:00

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 mansion is appropriate. However, he was clearly not killed in a cave somewhere in Afghanistan.

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.

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.

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.

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.

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.

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.

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.

I imagine family members of people lost on 9/11 feel some sort of vindication. People were chanting USA USA USA 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.

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.

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.

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.

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.

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.

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.

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.

And we got him. But where do we go from here?

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.

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.

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.

The real enemy is American hatred. Eradicate it and the terrorists go with it.

Hello 40. What took you so long?

2011-04-08T14:20:00.001-05:00

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.

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.

It's 10 years later. I am 10 years older. But fundamentally not much has changed. I am again in a band 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.

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.

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.

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.

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.

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.

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 than the hitting of the ball. 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.

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.

And then he died. Just like that. He was gone.

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.

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.

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.

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.

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 Eternity.

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.

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.

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.

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.

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.

But until then, I have so much more to do. I am barely getting started. So hello 40. Bring on 40 more.

When The Client Becomes Co-Counsel

2011-04-04T10:08:00.000-05:00

Every 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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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?

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.

When we need co-counsel, we'll ask.

www.schantz-law.com

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Spousal Consent To Search

2011-03-15T15:57:00.000-05:00

I 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?

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.

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.

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.

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.

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.

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.

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.

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 joint control 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.

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.

The judge agreed with me.

www.schantz-law.com

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What Is Possession?

2011-02-24T16:07:00.000-06:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There's just something not right about this.

www.schantz-law.com

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Carrying a Gun: Illegal Necessity?

2011-02-17T12:32:00.000-06:00

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

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

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

A. Don't leave the house.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

www.schantz-law.com

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Training a Lawyer or a Heart Surgeon...

2011-02-09T19:38:00.000-06:00

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

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

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

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

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

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

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

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

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

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

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

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

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

I digress.

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

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

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

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

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

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

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

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

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

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

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

And now for the caveat I mentioned. Rule 1.1 of the Illinois Rules of Professional conduct reads:

"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation"

What's that rule tell us? Not much, unfortunately. But the 2nd comment after this rule is a little more instructive:

"A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question."

To me this comment means that if you have a brain and are willing to hit the books and confer with other attorneys, there's nothing to prevent a lawyer from accepting any type of case, including a murder. And this is pretty much how I began my criminal practice. I watched. I read. And I asked a lot of questions from the older attorneys I befriended.

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

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

www.schantz-law.com

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2010: A Review

2011-01-21T15:27:00.000-06:00

2010 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.

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.

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.

That was until I experienced how it feels to lose one.

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.

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.

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.

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.

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 any 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.

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.

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.

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?

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?

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.

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.

She gave me some words of advice and I will leave it there. But it was a conversation I dearly needed to have.

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.

Looking ahead to 2011 found me remembering a scene from Band of Brothers. 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.

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.

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.

I welcome whatever 2011 has in store for me. I have been to the bottom. And I survived it. But barely.

It can only get better.

www.schantz-law.com

Making Sense of Insanity

2010-12-22T22:03:00.000-06:00

I 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Well, I do. Or at least I once did.

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?

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.

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.

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.

And I don't get it.

Keeping The Faith

2010-11-30T14:31:00.000-06:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

www.schantz-law.com

Twitter

Good Conduct Credit and Fuding a Prison System

2010-11-18T15:05:00.000-06:00

In 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.

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.

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.

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 settlement. I choose not to, saving the word settlement 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.

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.

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.

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.

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.

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 Day for Day Credit, 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.

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.

The more violent crimes are served at 85% of the sentence. And murders are 100%.

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.

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.

Credited by whom you might ask? You figure it out. But here are some shocking numbers.

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.

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%.

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.

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.

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.

It should be clear, Illinois spends a lot of taxpayer money keeping people in prison.

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.

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.

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.

Am I the only one that sees a tremendous problem with these numbers?

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.

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.

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.

I wish I had the answer. I really do.

A Critical View of Today's America

2010-11-03T15:05:00.000-05:00

Yesterday 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.

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.

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.

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.

This type of quid pro quo 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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 might be happening when empirical data shows it actually is happening.

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.

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.

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?

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?

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.

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.

There is way too much divisiveness today. The prevailing Us v. Them 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.

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.

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.

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.

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.

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.

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.

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.

We just changed the make-up of Congress 2 years ago. And it didn't fix much. Who's to blame? Everyone 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.

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.

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.

See who is spending the most money and ask why?

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.

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 status quo.

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.

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.

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?

They don't speak for me, thus I write separately and respectfully dissent.

My Recent Absence Explained

2010-11-01T19:16:00.000-05:00

Some 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.

I am alive. That much I can vouch for.

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.

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.

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.

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.

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.

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.

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.

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.

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 Jake Adelstein , being one of them.

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.

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.

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.

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.

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 posting from this morning, it's clear I am not a real positive person today.

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.

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.

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.

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.

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.

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.

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.

Besides, there's nothing that a week in the Caribbean can't cure. Or at least mitigate the hell out of.

Sincerely,

MLS

Sad State of Affairs

2010-11-01T10:48:00.000-05:00

Recently 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.

A reduction in violent crime usually arrives with cooler weather. Summer is long gone. But it's still warm enough to be outside.

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.

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.

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.

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?

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.

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?

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?

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

I remember hearing NWA's Straight Outta Compton 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.

I couldn't believe what I heard. Fuck The Police. Really? No, they didn't say that. Oh yes, they really did say that. A couple years later, Ice T came out with Cop Killer. That one caught some attention. And I think it was eventually pulled from future pressings of the album.

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.

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.

About the same time Straight Outta Compton was being made, the movie Colors 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 Crips and Bloods 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.

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.

Overnight gangsta rap was IT. I remember a Christmas from my past so clearly. It had to have been 1993 because Dr. Dre's The Chronic had already been out for a while. That was released in December of 1992.

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.

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 The Chronic and liked it. I am not a hypocrite.

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.

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.

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.

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.

The two main record labels producing hardcore rap and central in the West/East rival, were Suge Knight's Death Row Records and Sean "Puff Daddy" Comb's Bad Boy Records. 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.

What happened to Atlantic and Motown?

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.

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?

What the hell is going on?

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.

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.

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?

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.

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.

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.

And that, is a sad state of affairs.

www.schantz-law.com

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Lawyering for Liberty

2010-10-27T18:28:00.100-05:00

Before 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.

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.

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?

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.

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.

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.

I have written 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.

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.

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.

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.

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.

I recently watched the first episode of the new NBC series Outlaw. 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.

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.

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.

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?

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.

Hmm. That doesn't pass the sniff test either. Does it?

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.

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.

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.

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.

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.

When the rubber meets the road, however, I am the only person in the courtroom working on my client's behalf. Innocent until proven guilty 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.

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.

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.

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.

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.

At the end of the day, however, the client's interest must come first.

www.schantz-law.com

Air Jordans to Die For

2010-10-14T14:07:00.000-05:00

In Illinois we have three basic types of robberies (not including car hijackings). Simple, aggravated, and armed. Simple robbery, also commonly called strong arm robbery, is taking property from another by the use of force or threatening the use of force. An example would be an offender that grabs your arm and takes your purse. Simple robbery is a Class 2 felony and can carry 3-7 years in prison.

Aggravated robbery adds the element of threatening the use of force while either saying or acting as if armed with a deadly weapon. An example is sticking your finger in a victim's back pretending you have a gun, saying it's a gun, and then taking their wallet. Curiously it's also aggravated robbery to make someone ingest a controlled substance without their consent and then taking property from them. I have yet to see a case dealing with the later description. Aggravated robbery is a Class 1 felony and can carry a prison term of 4-15 years.

Both simple and aggravated robbery are probationable.

Armed robbery is committing robbery while armed with a dangerous weapon. From my reading of the law, the weapon need not be used or displayed during the crime. Simply possessing it while committing the robbery is enough to bring the crime under the armed robbery statute.

What's a dangerous weapon? That should be pretty obvious: guns, knives, swords, brass knuckles, ninja swords, chainsaws, and bludgeons. What's a bludgeon? A bludgeon is anything that one could use to hit a victim with and cause serious bodily damage. Thus, it seems arguable that one could commit armed robbery with a large flashlight. Perhaps a bowling ball too. If you could bludgeon someone to death with it, it's a bludgeon.

Armed robbery is a Class X felony. It's not eligible for probation and carries 6-30 years in prison.

In Illinois we have sentencing enhancements for armed robbery cases where a firearm was used. And these enhancements are stiff.

Merely possessing a firearm during a robbery adds 15 years to the base felony sentence. Not up to 15 years. 15 years. It's also mandatory. The judge has no choice. The statute has the language "shall be sentenced {to an additional period of 15 years]" in it. It doesn't read the defendant may be sentenced, it reads shall be sentenced.

At trial if the State proved the robbery and the gun, the defendant would get an automatic 15 years added to the Class X sentence. Thus, the range would be between 21 and 45 years; 6-30 + 15 = 21 to 45.

Discharging the firearm adds 20 years. The State now has to prove the robbery, the gun, and that the gun was fired. I just about a case down in Peoria county where the offender shot the gun at a wall to show the victim it was real. He got 26 years.

25 years are added if the offender shoots the gun and it hits anyone and causes great bodily harm or worse. It's not even the victim that need be shot. If an innocent bystander got hit, 25 more years. In this scenario, the State has to prove the robbery, the gun, that the gun was fired, that the bullet struck someone, and the bullet caused great bodily harm, permanent disfigurement, or death.

Hypothetically, one could set sentenced to 55 years in prison for armed robbery if the offender shot someone. In comparison, First-Degree Murder carries a prison sentence of 20-60 years. But much like armed robbery, the gun enhancements apply.

As you can see, committing armed robbery with a firearm is no joke. It can be punished harsher than murder.

In the last year, I have handled or am currently handling at least 15 armed robbery cases. All allegedly involving firearms. Sadly, the average age of my client is about 17-18. What baffles me is how silly the crimes are. Only 1 of my cases allegedly involved the robbery of a commercial business where one might expect to get some money. No, most of mine allegedly happen on the street and for things like Air Jordans, iPods, cell phones, and jewelry.

Is a pair of new Air Jordans worth 21 years in prison? This might make you laugh, but in 1 of my cases the victim allegedly told the offender he would have to kill him if he wanted the shoes. This fact pattern was read into the court record yesterday at my client's plea hearing. I couldn't make this stuff up.

There isn't one material possession I own or could ever own that would be worth my life. And this kid was ready to die over a pair of Nike basketball shoes.

Welcome to my world. Pull up a chair. And have a seat.

www.schantz-law.com

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The Chicago Marathon 2010: 100% Pure Misery

2010-10-11T15:11:00.001-05:00

As some of you know, yesterday morning, 10.10.10, I raced the Chicago Marathon. Actually raced isn't the best word. I survived the marathon. There, that's better. This wasn't my first marathon but it sure felt like it. Or maybe how a first marathon is supposed to feel. But I first ran this race back in 1996 in 3:09. That was my first marathon.

I have been attempting to break the 3 hour mark for the race. Not necessarily here in Chicago, but any marathon. However, Chicago has a very flat course and it's widely known to yield pretty fast times compared to other races.

If you have read prior posts on this topic, running a sub 3 hour marathon is my road to the Boston marathon. The last time I attempted the marathon distance in somewhat decent shape was in 2008 where I finished in 3:04 on a warm day. That year I was coming off knee surgery, and blah, blah, blah, I wasn't near 100% on race day.

2009 was a bust due to injuries so I jogged it in about 3:49 (I think). 2010 was supposed to be a "no race" year. I just wanted to be able to run steady this year without an injury that forced me to sit for a few months. After all, I just like to run.

Of course by early summer when I wasn't injured and could feel good running fitness coming on, the idea of a fall marathon popped in my head. I should have ignored it. Completely. But I late-registered for Chicago through a charity that I still need to raise money for or end up paying the balance of the donation goal myself. If you have it in your heart to donate even $10, please click here and do so. Thank you!

I ran very well in July and August, near 250 miles per month. I was getting fast. I was doing my long runs on Saturday mornings and they were easy. My weekly mileage had slowly increased up to 55. I was doing everything right. By the book.

I did a half marathon on September 12 as a tune-up race. And I wrote about how that race didn't go as well as expected. I ended up severely injured afterward, but still ran a 1:28. For the next month, almost all of my running was a joke. I took almost 2 complete weeks off and cross-trained at the gym. I also lost some extra muscle weight I didn't need.

The first week of October I was able to run again. Well, sort of. I did a few pretty decent workouts where I got my speed up. Last Sunday (October 3), I ran 12 miles. It felt ok. Going in to yesterday's race, I knew a sub 3 hour race was probably out of the question since I ran so little for the preceding month. I could feel I had lost sharpness.

Was a 3:05 possible? How about 3:10? Surely a 3:15 was almost a guarantee, right? Wrong.

Race morning started out pretty normal. I was up at 4. I drank a couple of cups of coffee. I ate a plain multi-grain bagel. I drank water. I drank some Gatorade. But not too much of anything.

The problem, however, was that my left foot and leg hurt. I developed some random plantar fasciitis back in July. If you don't know what that is, look it up. But it's a very painful condition on the bottom of the foot sort of in the arch area but reaches back to the heel.

I had never had this type of injury before. I took a day off in July when it happened. I ran shorter distances. I iced it. I stretched it. But I never let it heal. I figured out how to train with it. What I didn't know was that I was changing how I ran with my left leg to compensate for the injury, which in turn caused injury further up the leg towards the knee.

I taped my foot. I took some ibuprofen. Actually, I took a lot of ibuprofen and headed down to the race. I had the usual pre-race jitters in my stomach. I needed to have one last sit-down in a porta potty before the race. This is normal.

But the potty I went into and sat down inside of, was out of toilet paper. Oh no. Not good. I did find a plastic bag on the floor and made due with it. But you can imagine how nasty that was. As it turned out, I think that was an omen of more shit to come. Literally.

Because I ran a 3:04 in 2008, I was assigned to the first start corral, A. Almost 40,000 start this race. It can take 30 minutes for the folks in the back to reach the starting line. Being able to be up front only 30 yards back from the start is nice. Corral A is right behind the elite runners and it takes less than 20 seconds to reach the start line.

The race started. I took off. Immediately my left leg starting screaming at me. I wanted to pull right off the course and call it a day. I knew it was going to be bad if I kept going, but had no idea just how bad it would really get.

I kept going. Went through the first mile in 6:51. I felt pretty good because I was ignoring the leg. The first 9 miles were all under 7 minutes. I was on 3 hour marathon pace. I felt pretty good. I was relaxed. I wasn't breathing hard. My pace was where it needed to be.

But around mile 9, I started to slow down. I remember the exact step it happened. I ran my first mile in over 7 minutes, but only by a couple of seconds. I averaged 7:07 for the next 3 miles, then 7:26 for the 3 after that. At this point I was thinking maybe a 3:10 race might be doable.

But after I hit the half way point in about 1:33, it all went down hill from there. I got sick. For the first time in any race, I got sick. I had diarrhea. I was vomiting. My legs stopped working. And I did something in a race for the first time: I took walking breaks.

Due to the severe cramps I was experiencing, walking was the only way to keep me from shitting my shorts. A mile later I hit a porta potty. Sat down. Shot it out. Kept on running, albeit slowly. Then the vomiting started. Then more cramps. Short bought of walking. Slow running. Extreme cramps. Another bathroom break. Repeat.

I know of other runners who got sick during marathons. But it never happened to me. I never considered the possibility. I don't eat strange foods the 2 days leading up to the race. No grease. I eat mostly grains, such as wheat pasta and bagels. I really don't know what happened. Don't have a clue.

My body was doing everything possible to convince or even force me to quit and abandon the race. But my mind wouldn't buy it. Pride apparently was stronger than physical misery. And so this is how the last 10 miles of the race went. Utter misery. I eventually slowed to 11 minute miles because I was walking here and there. The last 2 kilometers of the race was at a per minute mile pace of 13:24. Ouch.

But it wasn't just me having a bad day. I had never seen so many seeded runners walking the last half of a marathon. A lot of people had a bad day. I usually see half a dozen or so seeded runners that went out too fast walking part of the last 5-6 miles. Yesterday, the walking wounded started appearing during mile 14. And I soon joined them.

It was warm and sunny. Some that had a bad day will probably blame the heat. I am not sure if the weather conditions played a part in my failure. It's possible. But I trained this summer in extreme heat when indexes were in the low 100's. I am not sure what the temperature was during the last half of the race, but it had to have been high 70's to low 80's. That is not ideal marathon weather. I simply don't know what happened to me. I am clueless.

The last 2.5 miles of the race is on Michigan avenue, headed back towards downtown from 35th street. Michigan avenue was total carnage. People were walking. People were off to the side, laid out like dead fish being treated by EMT's. It was almost surreal. Most of the time by that point in the race, my brain is a little soft due to lack of carbohydrates. But not yesterday. I never experienced any head fog. I was just sick.

I knew where I was. I knew my name. And I knew I wanted to die. I have never felt physical pain like that in my life. My legs were hurting in areas for the first time (and still are). Coming down Michigan the spectators were yelling "you're almost there, just 2 miles to go!"

That may have been true, but it was the longest 2 miles of my life. And ones I never want to experience again. I hit the turn at Roosevelt to make my way up the little hill at the end. When I reached the top, another cramp hit. So I walked the final corner to the finish line. Then I shuffled the last 100 meters and finished. Without soiling myself. That was a victory in itself.

Several people were being put into wheelchairs and taken immediately to a medical tent. I heard ambulance sirens everywhere. And soon I saw runners on gurneys being wheeled around. It wasn't pretty. But I kept walking. I got my medal. Let out a tear or two. Grabbed some Gatorade. And walked damn near a mile to grab my gear bag. Grrrr.

I had brought my headphones with me to listen to music on the train ride downtown that morning. I powered up my iPhone. Put the headphones in my ears and started playing Dark Side of the Moon. The pain started to ease ever so slightly. Then I had to walk another mile to get to the Adams/Wabash train station so I could get home.

This race proved to be the most difficult physical test of my life, including the Ironman triathlon. It was 100% pure misery. At no time was it fun. At no time did I enjoy it. I wanted to quit every step of the race.

Years from now, when I look at the race medal I won't remember it as the race where I broke 3 hours, since I didn't. I will remember it as the race where I found out about myself. And learned just who I am. I will be reminded that in the worst conditions I can imagine, I refused to quit.

Good marathons are easy. They just happen. You're ready. The conditions are right. And you do it while never feeling horrible. Sure it's 26.2 miles, but when you have a good race, they are not that bad. Yesterday was the exact opposite.

I am currently registered for the White Rock Marathon in Dallas on December 5. At mile 20 yesterday, I swore off that race. Entirely. No way I am doing it. It can go to hell.

24 hours later my legs are busted and sore like nothing I can compare it to. I am walking like an old man with polio, but I can eat and appear to be digesting properly. I am sure yesterday was just a fluke. But it was a humbling experience on many levels. The gimpy lower leg and foot weren't the reasons I had a bad race.

No, I think the Marathon Gods decided to remind me taking 26.2 miles for granted is foolish. I had lost respect for the distance. An act of arrogance I shall never repeat. The price was too great. I had no business starting the race given my condition. And my hubris cost me. Now I sit and recover. Tomorrow I will hurt less. And the day after, even less. Within a week, I will run again.

No matter what happens from here, yesterday's race on 10.10.10 will probably be my proudest race accomplishment. I never gave more of myself to accomplish one singular feat in my life. The Ironman triathlon took me just under 12 hours to finish, but was no where close to as miserable or painful. Everyone who does this sport eventually has a bad race to some degree. I sure hope yesterday was mine.

There are pieces of me littered throughout the last half of the Chicago Marathon's course. And not just me, thousands of people lost parts of themselves out there yesterday. The empty Gatorade and water cups have been swept away. Traffic is again moving along the course like any other Monday. But the memory of what happened out there is burned into me, never to be forgotten.

For to forget, would only set myself up to be reminded. Don't really want that.

Bring on Dallas.

My Love of The Work

2010-10-09T10:38:00.000-05:00

A couple of weeks ago, I wrote about how great Public Defenders are. I argued that given all they tolerate in performing their job, they must do it for love of the work. Deep down inside, they must be driven by a desire to help people in desperate need.

Now, I turn the lens around and look at myself and other Chicago criminal defense lawyers. I don't know how other markets operate. I don't know how much a lawyer in Dallas can charge for a drug possession case. I don't know the going rate for a murder defense in San Francisco. But I know Chicago. And I know that none of us CDL's are rich or even getting close.

In fact, we Chicago CDL's practice in the armpit of the law. I am not trying to make us sound exclusive or elite. Far from it. I imagine in other areas of the country where street crime is a problem, the job for a defense attorney is quite similar.

In an economic time where a lot of attorneys I know have expanded the types of cases they accept, I have done the exact opposite. For whatever reason, I have practiced myself into a corner limiting myself to less than 10 crimes I handle. If you read here, you know what they are.

The people getting arrested for the crimes I handle do not have a lot of money, thus I can only charge so much. I quickly learned where the market is and adjusted my practice accordingly. My overhead is extremely low.

Whatever notions or mis-perceptions I had about lawyers as a child are long gone. In the game of Life, the attorney's salary is second to only the doctor's. Growing up, I assumed all lawyers were rich. But I know union workers that make much more money than I do. And they have really nice benefits, whereas I have health insurance to cover a catastrophe and not much else.

Don't get me wrong, I am not complaining. I have a roof over my head. Clothes to wear. Food to eat. And a reasonable vacation a year. Not too shabby for a kid from South 13th Street in Springfield. I honestly didn't enter the practice of law just to be rich. I knew I could make a living doing it and nothing more. That was good enough for me. I have never had the drive to be wealthy. If you've never had it, you never know it's missing.

Next year I turn 40. I have little to no retirement money. My portfolio is limited to pictures. And I own no real property. Just some books really. And some old smelly running shoes.

I see the television commercials from financial companies like Charles Schwab preaching about planning for retirement. The one with the middle age guy in the diner IM'ing about how retirement talk has gone from "When we retire" to "If we retire" really strikes me. I don't know from where my next dollar is coming. Retirement planning seems like quantum mechanics. And I am terrible at high level math.

I dream of fleeing West. The mountains are calling me. But what am I going do to when I get there? Become the town lawyer of some small, rural mountain side city? How many shooting cases will I get out there? Robberies? Burglaries? I will probably have to become a real life Atticus Finch and there's nothing wrong with that.

Anywhere but here, having such a limited practice would bring starvation. Well maybe I could survive in Atlanta. Perhaps D.C. Los Angeles. Miami. Detroit. But none of those are anywhere close to where I want to live.

I want a simple home. One story ranch. A small porch. A rocking chair. And a view that could inspire art of many forms. I want my dog. My cats. A couple of horses. Maybe even a pick-up truck.

And if I have to work until the day I die to have and keep that dream, it will be worth it.

Scrivening wills can't be that bad.

www.schantz-law.com

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A Bad Case: Felony Probation & A New Felony

2010-10-05T15:44:00.000-05:00

I have written about how problematic it is when a client is on felony probation and picks up a new felony. It's probably the most frustrating set of circumstances I deal with regularly.

Back in June I was hired to represent someone in this exact situation. He was on probation for a Class 4 felony involving possession of cannabis. A few months into his probation, the police obtained a search warrant for his home. When the cops busted in the client told them he had a little bit of weed. He also told them where it was.

I have had clients in the past that told the cops what they had and where it was when faced with 12 officers that just blew the door off the hinges. They are cooperative so the house isn't torn to pieces during a search.

If you have never seen pictures of a house that police officers have searched, you might not understand. But assume a tornado blew through the house and threw stuff everywhere and you will be close to picturing how it looks after a search warrant has been executed. It's nasty. And disturbing.

Despite the client's cooperation, the police decided to turn his house inside out and then upside down. They naturally found the weed. There was 11 grams of it. That would normally be a misdemeanor amount, but they charged possession with intent to deliver, thus bumping it up to a Class 4 felony.

Also found were two .22 caliber bullets and in a closet in a bedroom a random rifle bullet.

Uh-oh. Houston, we have a problem.

Convicted felons in Illinois are prohibited from possessing firearms and weapons. That's pretty obvious. But ammunition is prohibited as well. These three rounds of ammunition brought an Unlawful Use of a Weapon or Ammunition by a Felon count. It's a Class 3 felony, subject to 2-5 years in prison.

The client denied knowing about the ammunition. And based on where it was found, I believe him. And he's not the only adult male in his home. On top of that, no weapons were found and the client has no weapon cases in his background. In fact, the cannabis case he was on probation for was his first felony. He's in his mid 30's, so clearly not a career criminal or some gang banger.

Did he violate his probation? Yes. He told the cops the weed was his. Not much I can do with this case regarding the probation violation. The only shot this case had was if the search warrant was bad. It wasn't. Search warrant cases are very hard to beat. There's an assumption they are valid since a judge approved the warrant. A special hearing to challenge a search warrant has to be requested. They are called Frank's hearings. And again, the defendant has to request and be granted one. They are not like normal suppression hearings.

I have filed one Frank's motion. The State was given a continuance to file a written response in objection to my motion. The prosecutor also wanted to argue her response but didn't show up to do so when it was filed. I withdrew my motion, demanded trial, and got a not guilty. But I digress. Totally.

Back to this case...on the last court date I had a 402 conference with the judge and the State. In a 402 conference, the judge is told about the case in the light most favorable to the State. The defendant's background is also discussed and I can offer mitigation but not really argue about the facts of the case.

I wanted the same deal I got for my last VOP client. I wanted to either plead guilty or have a finding of guilty on the VOP in exchange for a sentence of time considered served. The client has been in the county jail since mid May. I also wanted probation to continue and for the new case to go away. Had I gotten this deal, the client would have walked out of the county jail and right back on probation.

Given the lack of seriousness of either case, this seemed sensible. 3-4 months in the county jail isn't a picnic.

The judge didn't see it my way. He offered to PTU and give him the minimum of 2 years on the new case. PTU means, Probation Terminated Unsatisfactorily. And that's right, 2 years in prison for three rounds of ammunition.

I wasn't happy.

The client asked about trying to beat the new case. Then I had to explain the State elected to prosecute the VOP since the burden of proof is merely preponderance of the evidence. And here's where it got really messy and confusing.

For VOP's the defendant gets a hearing at a much lower standard of proof. New cases, obviously, bring trial rights and the beyond a reasonable doubt standard. It's pretty easy to see why the VOP is normally the route the State goes. It's just easier to win and send Mr. Defendant to prison.

There were a couple of issues the client and I discussed in an attempt to make his situation a little better. He did not want to plead guilty to the Class 3 UUW by felon charge. And I understood this. I asked the State if he could plead to the Class 4 possession of cannabis with intent to deliver count and still do the 2 years. The State refused.

Then I thought about proceeding to a VOP hearing. This way he would be subject to sentencing on the Class 4 felony he was already on probation for. He wouldn't have to plead guilty to the Class 3 UUW by Felon charge for the bullets. This was attractive on the surface, at least.

At a VOP hearing, this was a dead loser. But it was risky. The judge could give him up to 3 years (sentencing range for Class 4 felony is 1-3 years) rather than the 2 years offered at the 402 conference. But the new case was still lingering and the State would have a few options.

Regarding the new case, the State could be happy with the sentencing on the VOP and dismiss it. They could burn it in aggravation in the hopes the judge would give him 3 years. Or they could just proceed with that case and make us fight it.

At trial, I explained to the client that the new case was probably a loser on the weed (State would also need to prove intent to deliver) but that we might win on the bullets. So even if we lost on the weed but prevailed on the bullets, he could get another 1-3 years added to the time he would have to serve on the VOP. And he would also have to pay me to try the new case.

In the end, he took the judge's offer. He will probably do about 7 months downstate. This whole case stunk. I am not sure I was able to explain in this post how difficult this situation was because of the unknowns.

The cops only got the warrant for his house because someone snitched on him. Was he wrong to have the weed in his house? Yes, absolutely. Did he know the bullets were also there? I don't think so.

Was either the 11 grams of pot or the bullets really worth tax payer money to send him to prison?

Standing there yesterday during his plea hearing, I actually felt like chewing my own teeth.

www.schantz-law.com

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For Love of The Work

2010-09-28T14:15:00.000-05:00

I went to a concert last week with a friend from law school. We hadn't seen each other in a couple of years. She asked about my practice. I told her I handle street crimes. She responded "so, drugs and guns?"

Yep, drugs and guns. I quickly explained that over half the weekly Chicago felony arrests are for drugs and there's guns everywhere. Adding in some robberies of various types, random burglaries, stray shootings, and an occasional murder will represent my entire practice.

We talked about the local police department. I told her about how in certain situations they like to take shortcuts on the street. Then I told her what she probably already knew: the overwhelming majority of accused felons in the city of Chicago are represented by the Office of the Public Defender. So most of them get a free defense.

The next morning a Twitter acquaintance from Florida, who is a public defender, mentioned a standing ovation rendered to PD's at a criminal law conference/seminar in Florida.I think this is great. We need the PD's. In fact, we need more of them but there's no money here for more. I don't see this changing anytime soon.

Our PD's (and I am sure most) have a thankless job. They are criticized and doubted by their own clients. The families yell at them. Judges push some of them around. And there are a couple of horrible rumors floating around here that couldn't be more incorrect. The first one is that PD's are not real lawyers. And secondly, they just work with the government to get everyone to plead guilty.

Rubbish on both accounts.

The city of Chicago PD's in felony trial courtrooms have more criminal experience than myself and I have told endless callers this. I have done everything I can do to dispel the above mentioned myths.

The PD's get the crap cases. It's a fact. Anyone with a decent case whose family can put two nickels together is going to hire a private attorney, like myself. Am I better in court than a PD? Some, yes. Some, no. We in the defense bar, PD or private, win some and lose some.

Here in Chicago, flashy lawyering won't win cases in criminal court. We are only as good as the facts of our case. It's really that simple. And I like it this way. This way I know going in how good of a shot I have.

Last week the most seasoned private homicide trial lawyer in the city lost a murder case. But yesterday, a PD got a not guilty on a murder case from a jury. It's case specific. Win some, lose some.

Our local PD's are in a union. They have good benefits. Some of them appear to love their job and others, not so much.

I, too, have my days when it must appear I love being in court. And I am sure on other days I can look a bit distracted. But to do what PD's do, day in and day out, and tolerate all the crap thrown at them, they must love the work.

They all deserve some respect. And a thank you.

www.schantz-law.com

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Running Injuries

2010-09-26T10:14:00.003-05:00

Almost every person I have ever known that was a dedicated runner has been injured at some point in their running career. If you have ever watched someone running in slow motion, it's not hard to see how this activity causes problems. There is some serious impact.

Some say don't run. I have heard of doctors giving this advice. My own mother has told me the same thing. But for someone like me who runs to maintain sanity, that's a very tough sell.

Running injuries come in a variety of aches, ailments, and structural defects. Injuries can be caused by improper shoes, lack of stretching, improper diet, and stupid training. I have had at one time probably been injured due to all of the above.

Nailing down the cause of an injury can be very tricky. The more experience a runner has, the more that runner should know his or her body. But one thing a lot of runners do that gets them in trouble is ignoring their bodies. And usually at their own detriment.

In 2008 I started running seriously again after an almost 10 year break. I rediscovered my love of it. I was reminded of how great I feel when I am in very good shape. And I trained like an idiot. I have a tendency to think if something is good, more of that thing has to be better. When it comes to miles and running them, this assumption often fails. It did for me.

I really started running in December of 2007 while in Japan, but I kept no log of distances, dates, and time. When I was in Japan I had no idea how far or fast I ran. I just ran and tried to find my way back to from where I started. I know I scared some citizens of Hiroshima by running through its streets at 4:30 am on one chilly morning. Not too many Gaijins around there.

But around February 2008, I thought about returning to racing. Why not? It would give my new running a goal. Could I be faster though 10 years older? That question lead me down the path of ignorant training.

By April I was in glorious shape, perhaps the best running shape of my life. And I quickly fell injured a few weeks before a marathon that I predicted at finishing time well under 3 hours.

Steroid injections into both knees brought no relief. Physical therapy failed too. One month of little running went by. Then another. I wasn't getting better. I couldn't run pain free for any meaningful distance. I had an MRI that didn't reveal anything structurally wrong. But I knew something was not right.

I finally convinced an orthopedic surgeon to go in my knee and have a look. As it turns out, I was right. The MRI missed some frayed cartilage at the bottom of my femur. My surgeon shaved it down. 3 days after the surgery and once the swelling was mostly gone, simply putting all my weight on the injured knee and feeling no pain, told me the procedure was successful.

I was told not to run for 6 weeks. I made it 2. It was mid August. The Chicago Marathon was in early October. I had missed 3.5 months of proper training. There was no way I was still doing this race.

But I did anyway. And ran a 3:04:40 with no speed work for 5 months before the race. How is that possible? It's possible because of the level of fitness I had obtained prior to injury back in April. And I was in the gym on ellipticals when I couldn't run.

It would seem that for me, supreme running fitness is found in the gray area between healthy and injured. I kept running after the marathon in October 2008 but dealt with bilateral lower leg pain (shin splints) until I took most of December off to heal.

2009 started slower than 2008 running wise. It wasn't until April that I started running with any real purpose. I signed up for races including the Chicago Marathon again that October. I ran well in April and even better in May and June. I was back in almost April 2008 shape. And then it happened all over again.

In 2009 my knees were fine. But both legs from the knee down were in extreme pain from running. I hate using the phrase shin splints, because it's not really a condition but rather a symptom that can be caused by a dozen problems.

I tried at least 6 different shoes. I incorporated more stretching and strengthening. Nothing worked. What I needed is the remedy that's almost impossible to sell to a runner: complete and total rest.

This is a perfect example of me failing to listen to my body and paying for it. In 2008, I trained ignorantly. But my injury did sort of just creep up on me, which is rare. I simply woke up one morning and could barely walk.

2009, on the other hand, was preventable. I ran through pain for a month. And for that one month I had to give my body back 3 months of no running. And so I sat July, August, and September 2009. And I was miserable. I wanted to be at the lake running in the sun.

I still ran the marathon in October 2009, but it was a jog. And I decided I was going to actually take part in that race on the Thursday of race week. I don't regret it.

I didn't run much late in the year of 2009. Instead I looked at reasons how or why I was injured 2 years in a row and was forced to miss months of running from each year. I had simply done too much too soon. I was forced to realize I am approaching 40. I had to be smarter.

2010 began. I had no plans of doing one race this year. I already wrote about this in a prior post so I won't repeat myself here. But let's just say this year was much more methodical. Increases in running volume and intensity were done gradually. This was in stark contrast to 2008 and 2009.

This year I didn't regularly go over 30 miles per week until May. It's no coincidence that in May the weather was warm enough for me to run at the lake in the sun. I ran 40 miles per week in June. In July it was 50. August was 55.

My average per mile pace quickened as I ran more with no thought. It just happens. I imagine this happens to every runner. We all have a pace our legs find if we don't think about it. It takes concentration to run faster or slower. I know I am getting fitter when auto-pilot pace gets faster.

When I felt this pace was flattening out, I added some speed work. I didn't do my first tempo runs until August. And then it was only once per week. I ran some pretty tough workouts in extreme heat and all but one of them went really well.

On September 12, 2010 I raced the Chicago Half Marathon. The purpose of this race was to see where my fitness was. And with the results of this race, I could predict a time for October's marathon.

To say I went into this race 100% healthy is inaccurate. Back in July (I think) from out of no where, I developed plantar fasciitis in my left foot. It came on suddenly during the end of a 10 mile run. This is a condition I have had little experience with. But I learned how to train with it, though I took a full day off and reduced mileage for a couple of days. It is still bothering me, but I can live with it.

Prior to September, my last really good half marathon was a 1:21 in April 2008. That race would be my measuring stick. This year's half marathon wasn't great. I ran a 1:28:06 and fought myself every step of that race. I never got comfortable and found a groove. It just sucked. My per mile pace for the first 4-5 miles was 6:30 but I blew up and slowed down significantly.

1:28:06. Something was wrong with that. That's an average per mile pace of just 6:44. Back in April, when I wasn't in proper running form, I raced the Lakefront 10 miler and averaged 6:50 per mile.

Clearly something was amiss. Did I just have a bad race? Three days later when my legs were still too trashed to run more than 4 miles, I knew it was more than just a bad morning.

Since I couldn't run, I went back to the gym for some elliptical work. This was last Friday, September 17, 2010. And I did something I hadn't done in months. I weighed myself. I quickly knew why my race pace was so slow and my legs were trashed. I weighed too much. Simple.

The scale read 187 lbs. Wow. That was 10 lbs over what I would have guessed. But where was the extra weight? Those that know me will tell you I am incredibly lean right now. You can see my abs and lower ribs when I have no shirt on and there's no flab through the midsection. My clothes are very loose. I bought a pair of size 32" waist jeans a few weeks ago and they are way too big. What gives?

Does this look like 187 lbs? I stand 5'10" with shoes on.

When I saw race photos, it was clear where the extra weight is: the upper body. I am not skinny like a typical distance runner. Right now, I am carrying too much extra muscle up top.

I went back and looked at data from 2008. My race weight for the 1:21 half marathon in Springfield in April was 173. A month prior I was 170. A month before that 170. In January 2008, I was 167.

Apparently my body likes to add weight when I run more. This is sort of backwards from what one would normally expect. Looking at 2008 and 2010, I gained weight as I ramped up mileage and intensity. I am sure the same was true in 2009 but I haven't looked.

I think my body wants to be around 170-175 lbs when I am in shape. That's just where it wants to be. Or at least that's where it appears I can run well and still not weigh too much. Had I weighed myself back in July or August and seen a few extra pounds, I could have reduced calorie intake. That would have done it.

Since last Friday, I have lost 6 lbs and have ran very little. I adjusted food and supplement intake. I did a 20 mile run last Sunday but only ran once this week. I should be able to loose another 6-10 in the next 2 weeks prior to race day.

That's great, but sitting here on Saturday morning, September 25, I can't run. Well, I could. But it would make things worse. At this point, I doubt there's anything more I can do to make October 10, 2010 a reasonable shot at the 3 hour mark, except lose more weight.

Something is not right with my left, lower leg. I am being cautious. I am icing. I am stretching. I am resting. I am taking ibuprofen. I am doing elliptical work. And I am remaining positive. I don't want to think about not being ready on October 10.

My optimistic and positive side wants to think that even if Chicago is a no go, I won't talk about a wasted spring and summer of running. But my realistic side knows it will be a failure on some level. But right now, I am positive. I am saying to myself a little rest along with some weight loss might produce a great race.

I hope to get in a few workouts next week where I run at or slightly faster than goal marathon pace. I think mentally I need to know I can hit that speed and hope like hell it feels maintainable for 3 hours. I am not concerned about the total distance. I have put in the long runs. I am ok.

If October 10, 2010 doesn't go my way, it will be a learning experience. My body did not like racing at close to 190lbs. That's simply too much. And I am paying for it. I didn't think I had put any weight on. It never looked like it. And since my dress slacks were always just right or a little loose, why would I check?

But the Chicago Marathon won't be my last race of the year. I am headed to Dallas on the weekend of December 5 for the White Rock Marathon. The plan was just to have that race there to keep me from getting out of shape. But this assumed I would bust 3 hours in October and be headed to Boston in April 2011, thus an interim race would be a good idea.

But if I don't break 3 hours next month, what do I do? I can qualify for Boston no problem. Since I will be 40 by the 2011 race, I think I get an extra 5 minutes, or 3:20. Meh. It's sub 3 hours or no Boston. That's the deal I made with myself a long time ago. I am not backing out now.

Last year, the Boston Marathon sold out in November. If Chicago is a failure, but I come really close, do I go ahead and register for Boston in the hope that Dallas is a sub 3? I could always register for the Boston 2011 race and just not do it if Dallas is a bust too. This is the likely plan.

The act of running is pretty simple. We do it naturally as children. We're not taught. One day, we just do it. Some of us run, trip over untied shoe laces, and thrust our arms through glass doors, causing deep lacerations which scares the be-Jesus out of our mothers.

But I digress.

How did this get so complicated?

Finding Justice?

2010-09-20T14:46:00.000-05:00

Recently I have noticed that I am starting to become numb. From what? Work, in general. What two years ago would have shocked me now fails to raise an eyebrow. My reactions are becoming almost automatic. Am I slowly becoming an automaton?

I blame, in part, a couple of really heavy trial losses this year for my current funk. Yes, I have been forced to accept the system isn't perfect. My idealistic naivety is out the window. The cold hard truth has set in.

But I want to try and couch this so anyone reading can understand. Imagine your life today. Have a job? Family? House? Take vacations? Go out to eat? Sleep next to someone at night that you love? Think of everything you think you have that means something to you.

Now picture it gone. Just like that. And further picture yourself behind bars in a county jail or prison. Imagine, if you can, how miserable that might be. I doubt you come close to how horrible it really is. I wouldn't expect otherwise.

Imagine being accused of a horrible crime you did not commit. You would scream. You would cry. You would shake. You would be angry. You would demand justice. But what if you got no justice?

Imagine being told what to do 24 hours a day. When to eat. When to move. Where to move. How fast to move. How to move. When to shower. What to wear. What to read. I can say that to a degree, the Army is somewhat like that. But it's not prison.

If you're not a minority or you are fortunate enough to live in the good part of town, the idea of having something catastrophic like this happen to you has to seem pretty remote. And it probably is.

But for many people here in Chicago, this type of scenario happens with alarming frequency. If you live where most of the crime is being committed, your chances of being a victim of crime or accused of a crime increase rapidly.

And you would expect the system to sort it out, right? An innocent person has nothing to fear. Well, unless the innocent knows better, as I do.

Two clients of mine convicted of serious crimes this year were simply black and in the wrong place at the wrong time. No physical evidence tied either to the alleged crimes. What convicted them? Purported eye-witness testimony and a police department that was in a hurry to close the case.

I am still baffled at how some take the word of convicted felons when it helps a case against someone else, but call them incredible or liars when they are trying to help themselves. How does that work? So, they tell the truth as long as it's not their butt on the line?

In both cases I failed to convince the trier of fact that the State's witnesses were, in fact, lying. Apparently serial impeachments with bias, prior inconsistent statements, and significant felony criminal convictions along with drug addictions didn't do the trick. What would have?

Every day I go to court I see defendant after defendant in khaki jail clothes brought before judges. And I see lawyers. And I hear talk about this and that. But I so rarely see justice. The supply of new and repeat defendants appears to be infinite. Are we just moving them along like cattle?

The process for those that never break the cycle is well known. Catch a case. End up in county. Cop-out. Go downstate. Do some time. Parole. Repeat. I have had so many clients that don't think a stint in prison is such a bad thing. Or at least they don't show it.

When the conversation switches to "get me the least amount of time as possible, please", the client is already mentally gone. I can't get that.

I have been fortunate enough to have represented some factually innocent clients on very serious cases (murder, etc) who did get to go home. And I am still amazed at how composed they were sitting in this funky county jail and dealing with the gangs, the faux bologna sandwiches, the rats, cockroaches, MRSA, and more importantly, the unknown.

If I ever would have really stopped and realized what I represented to them, I might have cracked. Sitting here now, I can do it by putting myself in their place. If I walked out the door tomorrow and had the cuffs put on me, my lawyer would quickly become the most important person in my life. Perhaps of all time. Just think about that for a minute.

On a subconscious level, I must have already known this. It can only explain why I am so beat up about losing the ones I did this year. One client for murder. One for double attempt murder. Both sentences will be tantamount to life. One has a decent appeal. One has no appeal.

I am sitting here at the bottom looking up. Hoping to catch a ray of light. I need something to restore hope. I need to be re-motivated. I did find justice for a few clients this summer. I do win. In fact, I have probably won more motion hearings than lost this year.

But some losses are massive. And I fear they permanently damaged me. I immediately rebounded from one to not trust juries only to follow with not trusting judges.

My client trusts me. But whom am I to trust? Justice should be justice. Period. But it's not. Not even close. Justice in courtroom 205 is different than justice in courtroom 702. Justice today is different than justice tomorrow.

Buddhism would teach that justice doesn't exist since it's not permanent and unchanging.

And herein lies the problem: justice isn't consistent. It can't be. I am talking about very basic justice: the guilty are guilty and the innocent are innocent. I am not even talking about a case the State can't prove. I am talking about factual innocence. You know, the people that should go free or how about never arrested in the first place?

This has been a huge wake-up for me. And probably my greatest struggle. For I have found justice to be elusive and slippery. That realization scares me. I cannot stomach the thought that I could end up convicted of something I didn't do only to be stripped of everything and everyone now in my life by being sent to prison forever.

The thought makes me ill. And yet, it happens everyday. I know. I have taken part in it.

And it will haunt me, forever.

www.schantz-law.com

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The Blagojevich Trial

2010-09-14T16:05:00.000-05:00

Note: This was really written while the Blagojevich jury was out. I didn't post it then because I felt it was a little smug. Then I forgot about it.

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The criminal trial of former Illinois Rod Blagojevich is almost over. Currently a Federal jury is deliberating over the fate of Rodney. I know his lead attorney, Sam Adam Jr. Let me preface that, I know him from around the courthouse. But I have never hung out with him socially, although we did talk about having dinner back before this mess started.

Sam's father, known as Senior (Sr.) has been a Chicago criminal defense lawyer for over 3 decades. Everyone knows him. Well, everyone knows Jr. too. Sr. and Jr. were on the R. Kelly defense team but Jr. did most of the work. Everyone thought with the video evidence in that case, a guilty verdict was a sure thing. R. Kelly was found not guilty on all counts.

Understand that I didn't come up in the Chicago criminal justice system. I just showed up one day. I didn't know who anyone was. Last summer I was in the Bridgeview courthouse and heard a couple of PD's talking. Sam Adam Jr. was trying a case in room 104. Ok. Who the hell is Sam Adam Jr.? He was R. Kelly's attorney, I was told. I thought to myself, he might be worth watching. So I wandered over to room 104 and grabbed a seat.

The defendant was charged with possession with intent to deliver several grams of cocaine. I only saw Sam in action for about an hour. But I saw someone that knew how to connect to a jury. You couldn't take your eyes off of him and it was impossible not to listen to him.

I saw him teach the jury his theory of the case through his cross-examination of a couple of police officers. Then I watched him put his client on the stand and walk him through a direct that offered his client up as the real victim in the case.

I left before closing arguments. A week later I saw him. I walked up, introduced myself, and asked about that trial. What was the verdict? Not guilty, he told me. I wasn't shocked.

From then on, whenever we saw each other we exchanged hand shakes and pleasantries. He's about the most gregarious person I have ever met. And he's physically large, with massive hands.

A couple of months later I saw him at the main courthouse at 26th & California. He was about to start a murder jury trial. But he had co-counsel. I won't mention the other attorney's name, but he's another lawyer everybody knows. He dresses loudly and attracts attention to himself constantly.

I haven't really seen his co-counsel live in action much. I have watched him lose preliminary hearings right before I lost one. But I have never seen him litigate a motion or conduct a trial.

They lost that trial. Guilty on all counts. I didn't ever get a post-trial report from Sam so I don't know what happened.

At the beginning of last fall, I started asking Sam for advice here and there. By some divine intervention, I bumped into him immediately before my first jury trial last December. I was a wreck. I asked him if he had a couple of minutes. Absolutely, he said.

We sat outside the clerk's office in the Court's Administration Building that's adjacent to the main courthouse. I ran down my case factually. I told him my theory and strategy. I highlighted my weaknesses and how I planned to handle them. He gave me a couple of ideas for cross that I ended up using.

He told me it was going to be a not guilty. I can't explain how much that relaxed me. I went next door. I did the trial. And I got a not guilty. I saw Sam the next week. I told him about the verdict. He got this huge smile on his face that only Sam can make.

After the first of 2010, I did speak with him a few times about Rod's case. I knew nothing more than what was reported in the media. Franky, it's the type of crimes that hold no interest for me. I never felt that the former governor was likely doing things no one else did or does. Rod just made a very powerful enemy and the witch hunt was on.

I am not defending the former governor. I don't know the man. I haven't seen the evidence in this case. And I have barely followed it on the news. Again, it doesn't really interest me.

But I will say that Sam has played this case exactly how he told me he was going to back in January.

Without hearing one second of testimony in this case, I won't be shocked if it's not guilty across the board. If my butt was on the line, I know who I would want talking to my jury. And it ain't me.

Now we wait.

www.schantz-law.com

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Help Fight Diabetes While I Race The Chicago Marathon

2010-09-07T13:45:00.000-05:00

On October 10, 2010 I will race the Chicago Marathon for the 4th time. This year I am running for the benefit of a charity, the Chicago Diabetes Project. And I need your help to reach my goal.

Cellmates On The Run is a group of runners raising money and awareness in the fight against Diabetes, to fund the Chicago Diabetes Project, and I am one of them.

I think we all know or have known someone with Type I diabetes and are familiar with how problematic this condition can be. The need for a cure is critical, and a group of world-renowned experts is racing towards a solution.

I am raising money to help this effort. Click here to reach my personal donation page. Even as little as $10 will help. A cure is possible within our lifetime with the help of generous donations from people like you.

If you know anyone who might want to help me in this endeavor, please forward them the link to this blog entry.

On a personal level, I have hopes 2010 will be the year I break the 3 hour mark and find my way to Boston in 2011. As of today, I am injury free and my training is going very well. But I need your help to make it happen.

If anyone has any questions, please feel free to email me at marcus@schantz-law.com

Thank you all!

Marcus

Here is some basic information on this group:

Diabetes is reaching epidemic proportions. In 1985 there were 30 million diabetics. Today the number has skyrocketed to more than 197 million. By the year 2025, diabetes will affect more than 300 million people worldwide if the epidemic isn’t stopped.

But a cure is coming. The mission of the Chicago Diabetes Project is to make islet cell transplantation the most viable option for diabetes treatment. This international collaboration of qualified researchers and physicians is dedicated to finding a functional cure.

And here is the project's research focus:

With advances in islet cell transplantation, researchers are successfully replacing damaged insulin-producing cells with healthy islet cells from a donated pancreas. This pancreas comes from an organ donor the same as a kidney or liver for transplant would. Most recipients in islet transplant clinical trials will reach insulin independence, maintaining this insulin independence and an improved quality of life for years.

How Does Islet Transplantation Work?

Using state of the art laboratories, teams of surgeons and scientists work to isolate insulin-producing cells from a healthy, donated pancreas. The cells are counted and tested to ensure they are high quality and are appropriate for transplant.

Three of the leading Chicago area hospitals are involved in this effort. Currently this proposed method of treatment is for Type I diabetes only.

A Wise Judge

2010-08-26T13:35:00.000-05:00

A while back I wrote about the case of a young man and how I came to be his lawyer. He was initially caught with a pistol. I didn't represent him on that matter. A PD was able to get him probation since it was his first felony.

But he was put on Gang Probation which is extremely strict. There are curfews, random drug drops, rules about not hanging out with gang members, and a complicity to having your home searched 24/7.

The day after he got out of the county after being placed on gang probation, his home was searched. It was actually less than 24 hours later. A box of ammunition was found in his father's closet. The young man said he meant to get rid of the bullets but had forgotten they were there.

He was immediately arrested and charged with being a felon in possession of ammunition and for violating his probation. Really, he had 2 new cases. This is where I entered the picture.

Whenever someone on felony probation is arrested for a new felony, they are held with no bond. This young man, now my client, was arrested on April 28, 2010. I first appeared in court for him on May 26, 2010. I immediately requested bond be set since it was such a minor case.

And if you read my earlier post, the judge did set a very low, reasonable bond. The father, however, was not able to bail his son out though he had cash in hand. Our county jail messes up records all the time. I made some calls, but got no where.

On the next court date in June, I told the judge about my client's bond woes. And over the State's objection he was released from jail on an I-bond (Individual bond), which required no money. That night, the client went home. This is extremely rare in felony cases and almost never heard of when the defendant has allegedly violated felony probation by picking up a new felony.

The State also elected to prosecute the probation violation rather than the new case. They typically do this since the burden of proof is preponderance of the evidence as opposed to guilt beyond a reasonable doubt.

In theory, if found guilty of violating probation, that person could be sentenced to prison for a time based on the offense for which they are on probation for. In this case, it was 1-3 years downstate.

A VOP hearing was set for yesterday. After reading the police reports again, I felt it wise to just stipulate to those reports. I could see no reason that I needed to question any State witnesses. The facts weren't horrible.

The prosecutors love to stipulate. It's less work for them. The case was called. We told the judge our plan. He asked for opening statements. The State waived. I quickly reminded the judge the facts of the case.

A stipulation was entered that mirrored my opening statement. The State rested. I rested. The State argued. I argued. The basis of my argument was that my client forgot the ammunition was in his house. I argued that it's not as if he went out and committed a new act which violated his probation. He simply forgot they were there.

The judge found him guilty of the probation violation but ruled the State had only satisfied a burden of preponderance of the evidence and not guilt beyond a reasonable doubt. I will explain why he did this in a bit.

For violating the probation, the client was sentenced to 7 days in the county jail, time considered served (he actually was in for 49 days before the judge I-bonded him). And the judge ordered probation to continue. Though found guilty of the VOP, this was a win for the defendant. Time considered served is always a win, to an extent.

The State could have proceeded on the new case if they wanted to send him to prison. But the judge, in finding the State only proved a violation on a lower standard of proof, cut off that route. Thus, the second case was dismissed.

As of yesterday, the client has no more pending criminal matters in court. I could tell he was happy to have all of the behind him since there was a chance he would go to prison.

Despite the meager $100 retainer I took on this case, the father did pay me every nickel he agreed to.

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Compassion and the Criminal Defense Attorney

2010-08-23T16:54:00.001-05:00

I am a member of the National Association of Criminal Defense Lawyers. The purpose of the organization should be obvious from the name. The NACDL puts on several seminars yearly all across the country and the topics cover all things criminal defense related.

As a paying member, I get the NACDL's monthly journal, The Champion. This month there is an article about compassion and the criminal defense attorney. The article's author says we criminal defense lawyers should generate compassion for our clients.

To me this is a no-brainer. About 10 years ago, I studied Buddhism pretty seriously. I was able to put to practice in my life some of the fundamental concepts of it. According to Buddhism, the most important virtue one can develop is compassion.

What is compassion? Here is a dictionary definition: a feeling of deep sympathy and sorrow for another who is stricken by misfortune, accompanied by a strong desire to alleviate the suffering.

According to this definition, merely recognizing someone has fallen on hard times isn't true compassion. You have to feel it too. And you have to want to help make it better.

Being a criminal defense attorney provides endless opportunities to be compassionate just by doing your job. When I started this job I think I took on too much of my client's angst. It bothered me that innocent people were in the county jail. And it really bothered me when innocent clients went to prison.

But I quickly learned that if I was too compassionate, I wouldn't be able to function. I could lose my objectivity. Not all clients are the same. Not all cases are the same. Some client's situations are more compelling than others. But if they have hired me as their lawyer, they are all asking for my help. They need me. It is my job to help them.

During my first year doing this work, I concluded that my clients and their families wanted one thing more than anything else out of me: they wanted to know I cared. In a system that's overcrowded, unfair, too fast, and unforgiving, they wanted to know the person they hired to be in court, actually cared.

I attribute any success I had initially to the fact that I did and do care. I am not sure I can point to one thing about how I handle a case that shows I care, but the message was received loud and clear.

I spent a lot of time on the phone explaining the felony criminal process to worried mothers, grandmothers, wives, fiances, girlfriends, and sisters. I know I was hired on scores of cases simply because I took the time to listen to and answer their questions. I also went to the homes of most of the callers that hired me. My main motivation to do this was to get paid. That was obvious. But I was told it was impressive that I was willing to drive in and sometimes meet a very extensive family. I also always asked to see a photograph of the person I was being hired to represent.

When I went to the county jail to meet my new client, I can tell it made them feel good when I told them I was just at their house and met their grandmother, etc. Some I think were quite shocked.

This type of client servicing isn't something you can read in a book. It's instinctive. You either do it, or you don't. And in the dawn of my practice when I didn't have a lot of experience, I made up for this deficiency by out-servicing any other attorney out there. As the referrals started to come my way, I knew my work was appreciated.

I have seen criminal lawyers who clearly don't care. It's quite obvious. You can tell just in the way he or she talks to the client and the family. The people we represent and hire us don't want to be lectured. They want to be listened to. They want to be understood. And they want you to try your hardest to get the best outcome as possible.

It's really that simple.

Is this being compassionate? I don't know. But if you're in this business and have trouble sleeping because you have a client in custody that shouldn't be there, you might be on your way.

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The High Side of Winning

2010-08-03T21:50:00.000-05:00

Yesterday I wrote about losing in criminal court. Today I get to write about winning. This business is very up and down, like a sine wave continuously oscillating. There was a Frank Sinatra song years ago called That's Life. Here are the opening lyrics to the song:

That's life, that's what all the people say
You're ridin' high in April, shot down in May
But I know I'm gonna change that tune
When I'm back on top, back on top in June

As you can see from the Old Blue Eyes song, his ups and downs were on a monthly cycle. Mine are day to day, which has its good and its bad.

Back in May I conducted a hearing on a motion to suppress. I wrote about it here. A brief history of the case is as follows. On a December night in 2009, a man heard a knock at a window on the side of his house. This isn't in a great neighborhood by any stretch. At home was himself and his young son.

The man, who was 62 at the time, looked out the window. He saw another man he didn't recognize. A minute later this strange man appeared in front of the home. The home owner opened the door to say something to the man.

Here was the first dispute in the case. The man outside claimed the homeowner had a pistol in his hand when he opened the inner house door. He alleged the pistol wielding man said he should shoot him for banging on his window like he had.

The homeowner said he only had a baseball bat in his hand. That bat is kept next to the door. And he asked the man outside if he was crazy because he banged on his window.

The man outside called the cops. A few minutes later some arrived. Police officers entered the home and found a handgun under the mattress in the bedroom.

Here was the 2nd major dispute. The cops claim the homeowner opened the door and consented to them coming inside. But the homeowner maintained the cops just came in and started searching.

To his credit, the judge didn't make a credibility finding. If you recall from the prior post, the judge ruled the cops didn't need a warrant to enter the home because exigent circumstances existed which negated the 4th Amendment warrant requirement. I took a huge issue with that ruling.

The judge denied my motion. This client, though currently 62, had some criminal background from almost 30 years ago. Due to Illinois law, he was charged as being an Armed Habitual Criminal. The sentencing range for this case was 6-30 years.

After the judge's ruling I spoke with the client in the holding cell. To say he was disappointed would be an understatement. He had just married his current wife less than 10 year ago. She's a very good woman. And he's a very nice man himself. Very soft spoken and very gentle.

I saw the look on his face that I had seen before. It's the look of someone about to do a lot of prison time. I don't know exactly what they are thinking. But the look is the same. His was no different.

There was really no way out of this case. Prior to the motion hearing, I asked the prosecutor to consider proceeding on a lesser charge based on his age and lack of recent convictions. They said no way.

But I felt the judge was wrong. And I told the client I wasn't done fighting unless he wanted to go back out, plead guilty, and get shipped downstate on the next bus out. He asked me what could still be done. A Motion to Reconsider, was my answer.

I explained to him what such a motion is in a way he could understand. I told him it would mean another couple months in the county jail. I said it was rare that judges reverse themselves, but that I wasn't afraid to ask. The client agreed. I went back to the courtroom and told his wife. I think by telling her I had more fight in me, it gave her hope, if only a little.

Armed with my notes from the hearing, that night I started drafting my motion to reconsider. I wrote the history of the case and the relevant testimony from all 4 witnesses. A couple of days later I did my legal research and found cases that countered the judge's ruling.

Within about a week of working on the motion sporadically, I had a first draft done. It was about 6 pages. A long time ago I learned about writing for trial judges: Keep it short. On point. Use cases correctly. No high rhetoric. But argue your case.

And that's exactly what I did. I was happy with the final draft. If I wasn't already convinced I was on the right side of the 4th Amendment, I sure as hell was after reading my motion. It was spot on, or so I thought.

On the next court date, instead of asking for a 402 conference so a plea deal could be discussed, I filed my motion to reconsider. Not dead yet Madam Prosecutor and His Honor. The case was continued again so the State could read my motion and prepare to argue against it.

I let the client's wife read my motion before I filed it. She's not an attorney but said she understood every word of it. Right there that meant to me that I had written it correctly. If a layperson can read and understand it, surely a judge will be able to as well. Keep it simple stupid.

On the next court date we finally argued the motion. I didn't add too much to what I had written. The highlight of my argument that assuming the complaining witness was credible, then the most my client did was hold a handgun in his own home. The witness admitted at the hearing that my client never opened his outer door and never pointed the gun at him.

At best, I told the judge there might be an aggravated assault charge, which is a misdemeanor. I also pointed out that violation of the city of Chicago handgun ban, which at the time was still in effect, is also a misdemeanor.

In summary, I argued the defendant upon hearing a loud bang at nighttime coming from a window in a bedroom on the side of his house, looked outside and saw a strange man. That same man suddenly appeared in front of the house. The defendant in reasonable fear for his safety and the safety of his young son armed himself to protect his home and family. He opened the door to warn the stranger he was armed.

Also when I was drafting my motion, I couldn't resist just a touch of fluff. Here is what I wrote:

A man holding a weapon in defense of his home is not an act of violence. It is a longstanding American tradition that a man may defend his home with arms. This tradition is followed in the law. Defense of property is allowed because of the historic recognition of the sanctity of a man’s home.

Though owning a handgun is currently illegal in the city of Chicago, violation of this ordinance is only a misdemeanor. Therefore, the police were responding to only a very minor offense at most. The police officers both testified petitioner was never seen in possession of the recovered handgun. There was no testimony the handgun was ever possessed outside of petitioner’s home. It was never pointed at anyone. And it was never discharged. Thus, even if all of the State’s witnesses are 100% credible, the actions of petitioner cannot be reasonably described as violent.

The logical extension of this court’s ruling is that police may enter any private residence simply because someone alleges a resident owns a weapon. This is not the law. Even when a confidential informant provides information to police about the location of weapons and/or narcotics, a search warrant must be obtained.

If the protections of the 4th Amendment can be circumvented merely based on the word of anyone, then the protection against unlawful entries into one’s home is an illusion. And permitted warrantless entries into a home where a weapon was shown to simply warn a stranger, affronts the American spirit, the Constitution, and our history of jurisprudence.

After hearing argument on my motion to reconsider the judge granted it. Then he stayed his ruling so that he could order and review a transcript from the hearing. Damn. So close. Case continued again.

Today he gave his ruling. He ruled that despite his prior ruling, the police didn't need exigent circumstances to enter the home because the defendant had let them in. I think that means I had him on the exigent circumstances issue, so he just decided the cops were let in. Clever way around my argument.

But then he said that despite defendant admitting he had a gun, there was no consent for the cops to actually search for it. [Note: I also mentioned in my motion to reconsider there was no search warrant or consent to search]. And the gun was recovered in a different room from where the client was talking to the cops, thus the search incident to arrest end-run around the warrant requirement wasn't applicable.

The judge said something about a man's home being his castle. Ha! I think he bought my fluffy ending. And then he sustained my motion to reconsider and ruled the handgun evidence was inadmissible.

He asked the State if they wanted a check date. This is yet another continuance to allow the State to appeal this ruling to the Appellate Court. It happens, but rarely. But the State always takes that extra date. I think they do it to make the defendant sit in jail another month before the case is dismissed, but I can't be sure.

I was shocked when the prosecutor said "motion State, nolle pros"

In English that means the case was dismissed. The client leaned over upon hearing all of this and asked "what's that mean?" I answered, "it means you're going home tonight." His eyes got really big.

This story had a happy ending. I got a huge hug from the wife outside the courtroom. And for about 5 minutes I felt like Superman. This was a good case to win because the client's situation was compelling.

I was afraid he might die in prison and never get to kiss his wife again. I really was. 6 years for him might as well of been a life sentence. And I can't imaging anything worse than spending my last few good years on Earth in a funky prison.

These types of cases don't come along too often. And when they do and the law is followed, they need to be celebrated. For today, the 4th Amendment was alive and well. That gives me hope. Today is what keeps me coming back.

It's funny how things work out sometimes. I wasn't hired on this case until the public defender told the client and the wife it was a loser case and 6 years was as good as it was going to get.

When the wife called me and told me about the case, I told her I couldn't guarantee anything. I explained a motion to suppress the gun was about the only shot the case had. At trial it was an easy guilty. The gun was indeed there. Those are bad facts, I explained.

She talked to her husband and decided to give me a shot. I didn't ask for a lot of money and in the end they got a lot of lawyering for what they paid.

What's a year with your wife and son instead of being locked up downstate worth? What's Thanksgiving and Christmas with your family worth? What's waking up tomorrow and going for a walk in the park worth?

Sometimes we criminal defense lawyers give our clients something than cannot be valued.

Freedom

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The Personal Side of Losing

2010-08-02T15:06:00.000-05:00

I doubt anyone likes to lose. Some people detest it more than others. When I was a child, I hated losing at anything. From Monopoly to baseball, I hated losing. I don't know why. But I suspect it's because winning feels so good and losing so horrible.

My competitiveness eased as I grew up, but it's still palpable. For someone that likes to win, I might have picked the wrong career. I have to think most criminal defense attorneys that actually litigate cases in court lose more than they win. Well at least the ones around me do.

We in the defense bar celebrate wins that aren't even ours. When a fellow defense attorney does well in court, it's a nice thing to witness. It restores a basic faith in the fairness of the system that 5 minutes later is forgotten.

Gerry Spence claims to have never lost a criminal trial. I, like Norm Pattis, would love to know how many criminal trials he has tried to verdict. In my world, any lawyer that claims he never loses, is a lawyer that never steps in the ring.

I have lost my last 3 trials. 2 juries and 1 bench. I took something from each trial. I learned what I could or should have done differently. And I will still firmly state all 3 guilty verdicts were wrong. 2 of them were entirely unsupported by the evidence. And 1 was pretty close because the issue was whether or not my client knew there was a gun in his trunk.

If you read here, you might recall the 45 minute verdict I got on a murder case in April. That made me distrust Chicago juries. And two weeks ago was the bench trial where somehow the State's inconsistent, perjuring felon witnesses were found credible over my witnesses. The judge found my client guilty of 2 counts of attempt murder and 2 counts of aggravated battery with a firearm and I honestly don't know how.

The day after that verdict, I ran into my co-counsel on the April murder case. If you recall, she has a couple of decades of murder trial experience and represented the co-defendant. I told her about the previous day's verdict. She looked at me with this look that conveyed she knew what I was feeling.

I asked her something like this: "If the juries don't want to be here and screw us and we can't trust the judges, what are we doing?" I don't recall her exact answer. But it was something along the lines that asking that question too much was bad for one's career.

I am starting to figure out why so few private defense attorneys try cases or litigate motions. I am sure there's more than I think, but I still keep seeing the same ones over and over. Most of the ligating falls on the shoulders of the PD's and sadly, most of the PD's have bad cases. Or maybe we all have bad cases, and the PD's have the worst of the worst.

Maybe people give this career a shot and then leave out of frustration. I have thought more than once about retreating to misdemeanor court. No one goes to prison there. I know back when I was doing mostly misdemeanors, I slept better. And my overall day to day stress was much lower.

You can lose in misdemeanor court too. But compared to violent felonies, the loses are more gentle. Clearly the stakes are lower. But the flip side to the misdemeanor work was handling more clients, taking more phone calls, and earning significantly less per case. The busy work of signing up new clients and getting paid for misdemeanor cases was exhausting.

And honestly around here, I never felt like much of a lawyer doing the misdemeanors. More often than not, I was paid to come to court and watch the case get thrown out because the cops didn't show up. And even when the cops did show up, my client would get offered a little slap on the wrist like 60 days of court supervision. I never litigated anything in misdemeanor court because it rarely happens. I mean rarely.

I filed a motion to suppress on a misdemeanor case and the State gave me an unbelievable deal. I had a misdemeanor case set for trial but the complaining witness was a no show, thus the case was dismissed.

But back to losing in felony court. Why do I hate losing so much? The answer isn't simple. On cases where I really feel I am on the right side of the law, losing forces me to accept the system isn't perfect. Representing an innocent person that's going to prison hurts in ways I can't describe.

I feel my clients trust me. In the serious cases, by the time the case gets to trial, I know the client well. I know the family. I know the girlfriends. I know the buddies. I am part of the family. Everyone is counting on me to set things right. When it goes poorly, I feel like I let everyone down. The only thing the client and family knows is the outcome. Everything else is court and lawyer stuff. The stuff I am supposed to know. The stuff I am supposed to be able to work for our side. What do they think of me after a loss?

Losing also causes me to doubt my abilities as an attorney. I always ask if the outcome would have been the same with a more seasoned litigator. Losing sucks because it's taking the place of a winning celebration, however small. Winning just feels better. My life is a better place to be when I win. It really is.

I need to figure out a way to savor the wins more and brood on the loses less. There has to be a way to balance this all out. If not, I will slowly be consumed by the failure virus.

A couple of weeks ago, I tweeted that my job is much like gambling in Las Vegas. I win just enough to keep playing, but overall I lose more than win.

Since I began serious felony litigation under a year ago, I have had some successes. Right before Christmas I returned a young man to his 4 children after he spent 5 months in the county jail. And in April, a client charged with murder, was freed after 8 months in jail when I got his case dismissed on the day of trial.

I have spoken with both clients sporadically since they went home. I would like to think neither will ever forget me. I won't forget them. There have been other significant wins too, but those two cases are the ones I celebrate privately the most. Both cases remind me of why I do this job. And both cases remind me of how great it feels to hand deliver justice to someone dearly in need of it.

Much like that one great golf shot in an otherwise horrible round, the few great wins do keep me coming back. I am slowly learning to deal with the loses. Every time I hear "motion denied" or "guilty" my skin grows a little thicker. My time to pout grows shorter. And I suspect my resolve stiffens a little more. I will never like losing. Nor will I accept it.

But it appears for the time being, I have to learn to live with it. I will figure out a way to make something good from it too. Character is measured not by how we get knocked down, but in how quickly we dust ourselves off and go back at it.

You either do, or do not. There is no in-between.

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The War on Drugs

2010-08-01T13:01:00.000-05:00

It's been since the mid 1980's that America's War on Drugs officially began. When crack-cocaine took over as the street drug of choice in many of our inner cities, politicians realized we had a problem. I remember it being called an epidemic.

Powder cocaine first saw coast to coast use in the late 1970's, but in the early 1980's its popularity peaked. Powder cocaine, however, was too expensive for most people. Someone figured out how to make it cheaper and crack-cocaine was created.

Crack-cocaine is far cheaper than powder cocaine and it's smoked. The highs are more intense. The side-effects are worse. And it's more addictive, thus harder to quit. Anyone can afford a couple of rocks of crack. Currently in Chicago, one average rock of crack is only $5 and that's enough to keep a smoker high for an hour at best.

Apparently in the big cities, heroin had never gone away. Heroin use appeared to have peaked in the early to mid 1970's. But in cities like Baltimore and Chicago, heroin remained popular.

Cocaine is made in South America. And in the 80's and 90's most of it came from Columbia. In cocaine's hey day, the trafficking of the drug was controlled by a few Colombian cartels, who employed military-like soldiers to protect their product. The cartels also owned local and national politicians and killed any not willing to play ball.

The money to be made in the United States through cocaine distribution was in the billions per year. At the time, most cocaine was being flown from small dirt air strips cut out in jungles to clandestine landing strips spread through the Caribbean.

Miami became the early port of choice for smuggling the drug in the U.S. But anywhere along the Gulf of Mexico or the East Coast was fair game.

The U.S. response was to employ more law enforcement. Numerous busts were made and thousands of kilograms of cocaine were seized. Then the cartels started shipping more product and to more locations.

The DEA along with un-corruptible Colombian law enforcement and military outfits waged a non-stop war against the cartels. Fields were burned. Labs destroyed. Cartel members killed. And finally the cartels were essentially destroyed. Remember how Pablo Escobar was shot to death?

Despite billions of dollars spent by the U.S. fighting the cocaine trade, it doesn't appear to have made a difference. Once the cartels ceased to exist in their prior form, cocaine production and trafficking fragmented. Instead of having 5 major players, it became hundreds of smaller producers.

Then the trafficking routes and methods changed. Rather than bringing it in by water along the Florida coast, most cocaine now goes through Mexico. The Mexican smugglers get a cut of the profit and move it right across the border. This is why cocaine is much purer and cheaper in the Southwest states along the border with Mexico.

Crystal methamphetamine became an epidemic in rural areas (primarily) in the late 90's and early 2000's. Most of it was made in ad-hoc laboratories from items that could be purchased legally or stolen from farmers easily.

Meth is nasty stuff. Sheriff's departments all over the country employed special tactical units whose purpose was to find and destroy bathtub meth labs. And they were largely successful. We have seen the stories from Missouri, Washington, Nebraska and many other states where small, but dangerous, meth labs were discovered and destroyed.

But the meth business got smart. It moved production to Mexico, out of reach of American law enforcement. And the drug got purer and cheaper to make.

We have tens of thousands of U.S. military soldiers currently in Afghanistan, where the majority of poppy plants are grown from which heroin is made. Is it harder to get heroin here in Chicago? The answer is no. It's still everywhere for $10 a bag.

As I wrote above, in the big cities, heroin never went away. Researchers claim Chicago has the worst heroin problem in the country. I have recently read suburban kids are driving into West side neighborhoods to score the drug.

Drug arrests in Chicago account for just over 50% of weekly felony arrests. It's a constant business. Dealers chance getting arrested for quick, easy money and the cops are constantly making arrest after arrest. But it's not slowing down the business.

As soon as one dealer gets arrested, another one pops right up after the police leave. There seems to be a never ending supply of willing dealers.

Of course the drug business brings extreme violence along with it. Most, if not all, drug sales are gang controlled on some level. It's revenue. And it's worth shooting and being shot over.

I can't write where all of the money on the war on drugs has been spent. But my gut tells me that law enforcement got the lion's share of it. I realize treatment centers are scattered here and there, but so many of them have been shut down in recent years due to lack of funding.

Has more law enforcement worked? If the war on drugs was designed to fill our prisons with felons convicted for drug related crimes, then I say yes, it worked. Brilliantly. But I doubt that was the goal of the war on drugs.

Wasn't the goal to rid the streets and society of drugs? If so, we have lost this war several times over. And the reason we lost is because the war was fought against the wrong enemy. The true enemy is drug addiction itself, not those that supply the addiction.

If there is a massive demand for a product, producers and suppliers will find a way to that market. It's simple economics. But if the demand dwindles the supply side is left hanging in the breeze with a product no one wants.

Solving the drug addiction problem is a very difficult challenge. People with problems get high to forget about those problems. Some alcoholics drink for the same reason: the chemical escape from reality.

There is also a lack of jobs component to the current drug crisis. But even in the 90's when jobs were plentiful, I doubt drug dealing suddenly stopped because the dealers went to work honest, 9-5 jobs.

Address the addiction and you address the real problem. But the laws made to criminalize all things drug-related are not working if the goal is to rid us of illegal drugs. It's just costing more money in the long run.

I am not implying we should stop law enforcement efforts, but energy and resources need to be directed at stopping drug addiction. I wish I had the answers. People use and get addicted to drugs for many different reasons.

But I don't think people really happy with their lives are smoking rocks or putting needles in their arms. I think some thought heroin use and then crack-cocaine use would stop when that generation of users died off. That didn't happen.

The drugs hung around and the next generation in line took up use. A lot of the suburbanites coming into the city to score are teenagers. We tried to educate kids about the dangers of drugs. Remember the ad campaigns: Just Say No. Remember the television commercials that claimed a frying egg was your brain on drugs?

The effectiveness of such efforts cannot be calculated. They might have kept some people away from hard drugs, but they didn't discourage enough of them. For many in the suburbs, heroin and crack-cocaine is an inner city problem. The suburban use of these drugs is present but it's widespread. On Chicago's West side, drug selling is a corner to corner phenomena.

It is so out in the open that I am amazed. Every time I am in the West side and the South side (to a lesser extent), I am offered drugs. However, dealers aren't running up to my car and handing me a menu. But I am white and clean cut. I must look like a suburbanite looking to score. Street words like "blows" and "rocks" are yelled at me as I drive slowly down the side streets. Some use hand signals giving me directions where to drive to make a purchase.

Some of the drug dealers have police lookouts. Sometimes, it's a sophisticated operation. I have seen lookouts on both ends of a street. Callers pull in buyers. A collector at the end of an alley takes the money. And the distributor half-way down the alley gives the drugs to the buyer.

But a lot of dealers operate alone. These are the ones that get busted. They are easy to watch. And their dope is nearby.

But none of these sellers keep a lot of product around. A typical street bust for dealing only recovers less than 5 grams of total product. And most dealers are usually caught with less than $100 in their pocket. Given the scope of the problem, these little arrests are really meaningless.

So very few arrests are made of people actually moving the large amounts into the city. Heroin and cocaine are made in Chicago. Who is bringing it here? How is it getting here? Again, I look to Mexico and the illusion of a border that separates us. But even if we built a 30 foot high concrete wall around our country, the drugs would still get in.

Why? Because there's too much money to be made not to try. So once again, we are left with addiction being the driving force behind this all.

When trying to solve the problem of drug addiction we need to ask why it's such a problem in the U.S. Sure people around the world use drugs, but the U.S. is the real market. Why?

Why are some people's lives so unbearably painful, they choose to use hard drugs to escape them? I think it's because when they are high it's the only time they feel good. And that is sad.

Is America on a steady decline as some suggest?

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The Road To Boston

2010-07-27T20:26:00.000-05:00

When I was a kid, I was like a fart in a skillet. I never sat still. I probably had undiagnosed ADHD or simply consumed too much sugar. It would be a lie to write that I completely grew out of it.

Around the time I was in middle school, I realized that I was an above average distance runner. Regularly in gym class, we had to run around two giant fields. I have no idea how long of a run it was, but I always raced it and always came in first or second.

For some reason that's still unknown to me this day, I didn't run cross country or track. I grew up around a very fit father. I can't think of too many days from my childhood that my dad didn't work out. He lifted weights every day. He had washboard abs and was built like Rocky.

In high school he tore his knee so normally his cardio was limited to a rowing machine at home. We didn't have a garage so our house was pretty much my father's gym. My dad never ate junk food and he drank a lot of milk. Consequently as a child, I didn't eat junk food and also drank a lot of milk.

My dad eventually started running during my middle school years. We lived in a rough area of town, so he would drive to a nice park for running. Over the summer between my 7th and 8th grade years, I went with him. I have no idea how fast either of us ran, but I could never keep up with him.

In those days, I didn't even have a watch or proper running shoes. I just ran. And I don't know why.

Because I was a normal boy of my generation, I was a skinny kid. In the summer I was forbidden to be inside during the day except for the hour or so I spent doing household chores, like washing dishes.

Being outside all day, all summer, I played a lot of baseball, rode my bike, climbed trees, traded baseball cards, and cut grass here and there. But I never sat around and did nothing. I was constantly moving, like an electron.

I went through high school and again didn't run cross or track. Overall I was less active, but still skinny. I spent most of my high school years chasing girls and playing my guitar.

I joined the Army the summer after my junior year. It was that summer that I started running again. Because I took so many classes my first 3 years of high school, I got to graduate in January my senior year. A week later I was in boot camp.

But that last summer, I ran almost every night before I went home. I don't remember how far I ran. I never timed it, either. I ran so I wouldn't be out of shape when I got to Ft. Benning, GA in January.

In the Army I was a pretty decent runner. For the 2 mile run I used to come in at around 13 minutes. That time put me in the top percentile but still a couple of minutes behind the fastest guys.

It wasn't until I was stationed in Hawaii that I did any real distance running, however. In the barracks room next to mine lived a Mexican guy from East Los Angeles. He was older than myself. He loved 2 things. Jack Daniels and running. In that order.

Most nights during the week he would go out and run a 9 mile out and back course that went up a small mountain at the back of Schofield Barracks. I remember thinking he was insane. Run 3 miles in the morning. Then run another 9 at night? Stupid.

One day the challenge was laid down. He said I couldn't make it up there and back. A couple of nights later, I ran with him. And I almost died. But I made it. When I got back to the barracks I collapsed on my bunk, lit a Marlboro light, and asked my body for forgiveness.

The word quickly got around that I had made the running journey to Kole Kole Pass and returned alive. Some people started looking at my differently. I admit I felt some pride. And that's probably when I was hooked. Right there. Right then.

I started running with Gonzo almost every night. Then I started running with the fast group at PT runs. Our company runs were split into 3 speed groups: fast, normal, and geriatric. The second two groups resembled a normal military formation run. Side by side running and yelling cadence.

The fast group was an entirely different story. It was generally less than 10 men. There was no formation. There was no cadence. It was hit the road, run as fast as possible, and try to hold on.

The first time I ran with the fast group, I doubt I made it more than half a mile. I don't think anyone had an idea of the pace, but I guess well under 6 minute miles. Well under. Within a few months, however, I was able to go the entire 3 miles at ludicrous speed.

My first real road race came in 1991 when I, along with a few others from the fast group, ran the Oahu perimeter relay. I was an E-3 or E-4 at the time, but on my team were a couple of officers and some senior NCO's. I admit it felt awesome to be part of that team.

I don't remember where we placed or how fast we ran. I know we did well. I still have the medal from that race and the memories of not being able to walk for 2 days solid. If memory serves me correct, it was an 8 person team over a 130 mile course. I think each runner ran 4-5 legs ranging in length from 3 to 6 miles.

Imagine if you will, racing a 5k full out, crawling into a Chevy Suburban for a few hours and then getting out and doing it again. Then repeat a couple of times. That is a recipe for having angry legs. Mine were no exception. Here is a picture after we finished. I am all the way to the right and that's Gonzo to my right. I only count 7 in the picture but I thought we had at least one more runner. I was 19.

And that race would be my last race until 1996. I got out of the Army in early 1992. Like so many ex-soldiers, I got fat. Really fat. I stopped working out completely. I was still smoking. My diet was crap. My body was a glaring reflection of that lifestyle.

On February 1, 1996 I stopped smoking. And I ran for the first time in 4 years. I was able to do 2 miles at a decent pace without dying. I also cleaned up my diet. By March I had decided to do the Chicago Marathon that fall. And by April I had already lost almost 35 pounds and was doing 15 mile long runs.

In August I signed up for and ran my first 5k in 17:45. I was 50lbs lighter but still knew absolutely nothing about racing or how to train to run fast. I bought 1 book to prepare for the marathon, but I did no speed work. No mile repeats. No tempo runs. Nada. I just ran.

I was probably averaging a little over 50 miles per week. Some days I ran faster. Some days I ran slower. I took a day off here and there, but still ate almost no crap food.

That October I ran my first marathon at age 25. Because of how I am, just completing the race wasn't going to be enough. I had to have a time goal. So, I thought it would be cool to qualify for the Boston Marathon, though I couldn't have afforded to go do that race.

With one fairly recent 5k under my belt, I headed up to Chicago for the big race. It was a great day until around mile 18 when someone threw a piano on my back. From there on my pace got slower and slower. My legs heavier and heavier. My nipples left red trails of blood down my white singlet. The pain was excruciating. I wanted to stop.

I finished in 3:10:XX. Crap. My qualifying Boston time was 3:10. Almost. Until about a month ago, I thought I missed qualifying for Boston by less than 1 minute in my first marathon. But I found out that if 3:10 is the qualifying time, anything under 3:11 gets in. WHAT? I did make it? HOLY SH*T!

From 1996-1998 I worked at a running store and did tons of road races, mostly because they were free and I am a t-shirt kind of guy.

In 1997 I found triathlon. In 1999 I did the Ironman Florida. Again just doing the race wasn't enough for Mr. Mental Case here. I wanted sub 12 hours. I made it with 15 minutes to spare.

Then I was done racing. I was sort of burnt out. But I didn't stop running, per se. I just had no purpose, or so it seemed.

During my first semester of law school, I woke up early every morning. I ran about 30 minutes. Then I went to a field and did push-ups and sit-ups. That lasted until first semester finals, when all hell broke loose.

For the next year and a half, I was the victim of a series of medical problems that damn near killed me, both in body and spirit. Most of law school is a blur due to heavy use of narcotics. How I made it through is a mystery. But I know I came out the other end a changed person forever.

During my illness I had stopped working out. I simply couldn't. I spent most of my time in agonizing pain and then stoned for days. I fell into a downward spiral that took me to the darkest places of human existence.

When the illness finally gave up trying to kill me, it took a solid year for me to feel like myself. I was left a drug addict. The week I spent on my mother's couch kicking the drugs was beyond anything that can be conveyed from one person to another. I wouldn't wish that utter hell on anyone. I never prayed so hard I would die and quickly at that.

Once again, I was seriously overweight. But I eventually got my butt into the gym. And within 18 months I was back to my old self, only now reborn and better.

I am not built like a distance runner. Not even close. I have the upper body of a light weight boxer and the legs of a tailback or soccer player. They grew during my Army time. It seems carrying a massive rucksack with a radio strapped to it up and down gulches in the jungle causes leg growth. When I began cycling, they grew even more.

I spent most of 2007 lifting heavy weights with my upper body in an attempt to balance me out. Through a very dedicated system of diet, cardio, and weight training, I added about 25 lbs upstairs. I didn't like it. My face looked ballooned. And I felt like I was carrying some other dude's body.

Before I had bulked up, I lost all of my sick weight. In November and December of 2007, I ran off all of the extra muscle I spent months gaining. By January 2008, I looked like myself when in shape.

Somewhere around early February something got me interested in racing again. I was running almost 100% indoors on a treadmill at my gym. In March I ran my first race in 9 years. It was a 5k. I ran it in 18:50. Eh. I think I took 3rd in my age group so I was happy. A couple of weeks later I ran another 5k in very cold, windy conditions. I was a little slower but still took home an age group medal.

I could tell I was getting in really good shape. I have always wanted to go run the Boston Marathon just because. The qualifying time for my age is 3:15. Bah. That's not fast enough for el stupido. I declared no Boston for me unless I go sub 3 hours, officially.

I signed up for the Rockford Marathon scheduled for mid May 2008. In early April I went down to Springfield to run the Lincoln Memorial Half Marathon. This was to be my first real distance race since 1999. I had no idea what to expect. I didn't know what my fitness was like over a long distance.

I ran it in 1:21 finishing in 10th place overall. Based on that time, a sub 3 hour marathon should have been a slam dunk. Here is a picture of me running through a cemetery on the race course.

The next week I was recruited to run with a team doing the River to River relay in Southern, IL.

River to River is an 8 man, 80 mile race from the Mississippi to the Ohio River. The course is crazy hilly and 100% rural. As it turns out, I was the only person on my team that didn't run in college. The man who had won the St. Louis marathon the same day of my race in Springfield was on my team. He's stupid fast.

For this race, each runner ran 3 legs. I will let you do the math. But it reminded me again of the Oahu relay back in 1991. The big difference was there was less time between legs because we were so damn fast.

We took 2nd place out of a couple hundred teams. I was happy that I wasn't the slowest person on that team. The next week I ran about 70 miles, finishing with a 22 mile long run that Sunday.

On Monday morning when I woke up I knew I was in trouble. I couldn't have ran 10 feet. Fast forward through injections in both knees, months of no running, MRI's, failed physical therapy, and at the end of July, I had right knee surgery. As you can see from the picture below, it wasn't anything drastic. I just needed some cartilage shaved down.

Though I was supposed to wait 6 weeks before running, I waited 2. I was registered for the Chicago Marathon just 8 weeks away. But I had given up on doing it. There was no way I was going to be able to get ready. Or so I thought.

Even though I wasn't able to run for 3 months, I kept working out in the gym. I did lots of elliptical work to maintain my aerobic base. I think it was probably my second week of running again that I felt maybe I could still do Chicago.

I went into the 2008 Chicago Marathon having no clue what my racing fitness level was. I knew what it was back in April, but standing there one morning in October 2008, I had no idea.

I know people that pace themselves during races. They have time goals. They know what their mile splits need to be to meet that goal, etc. I have never raced this way once. I just show up and run the thing as fast as I can.

I read a book last summer about how the brain knows how fast you can run over a distance. I believe this to be 100% true in my case. At any given race, my brain and body know what my max pace is for that race on that day. It just happens. And I go with it.

My time for the 2008 Chicago Marathon was 3:04:XX. I finished in the top 2%. I was well under 3 hour pace until about mile 21 where my training deficiencies caught up with me. I simply hadn't put in the miles. But I walked off the course that morning knowing that I had nothing left. I had given that race all I had in the tank. Here is a picture from that marathon.

The next month, November 2008, I went to Nashville to run the Harpeth Hills Flying Monkey Marathon. I was again injured from doing too much before Chicago the month before. This was a really cool race, however. Actually it was a social weekend and we just happened to run a marathon on Sunday morning.

The Flying Monkey race is in Percy Warner park and has to be one of the hilliest marathons in the country. I don't recall one portion of it that was flat. At that time of the year, the park is in full fall colors and it's really a beautiful course. Here I am on the left as you're looking at the picture. Neither of us 3 were racing the course that day. Instead we all ran together and told jokes. Runners are weird.

I know the weirdo that created the Monkey race and administers it every year. He usually only lets 200 runners in and the post race party was more like a pot-luck with beer. The best post-race food anywhere. The best race medal ever (it's made of wood). See below:

After Monkey 2008, I took off most of the month of December to heal up. I did run a couple of days after Christmas on a treadmill at the Monte Carlo Hotel/Casino in Las Vegas.

Fast forward to spring 2009. Once again I am getting into pretty good shape with an eye on the Chicago Marathon that fall. But much like 2008, I trained unwisely. I added too many miles too soon. And again, I would be forced to sit down for 90 days while my body healed.

I never had an official medical diagnosis for my problem in 2009, but I suspect it was bilateral tibial stress fractures. A big difference between 2009 and 2008 was that in '09 my 90 days of no running, were the 90 days immediately before the marathon. Shit.

I did go out last October on a very cold morning for the marathon. I decided two days beforehand that I was actually going to do it on zero training. I ran it that day with a very special person and it turned out to be my favorite race of all time. Never before had I noticed what a spectacle this race is. I never saw the faces or heard the cheers before.

By taking my head out of super competition mode, I was able to open up and really experience the race. It was cold as hell, but I really enjoyed it. The rib dinner that night was the icing on the cake. Here is a 2009 Chicago Marathon picture. I was too cheap to pay for them since it wasn't a glorious race.

In the quest to get to Boston on my terms, 2008 & 2009 were failures. It took 2 major injuries to teach me that I am no longer in my late 20's. 2 years in a row I trained incorrectly.

As soon as I start to feel my body getting into shape, I just want to pour more on. More miles. Tempo runs. 400's. Going from 40 miles to 60 miles a week in 7 days isn't smart. And I know I knew better. But feeling good is addictive. And if running is making me feel that way, than surely more running will make it even better. Wrong.

Much like December 2008, the last month of 2009 saw me running very little. I entered 2010 with a new approach. This year I wasn't going to race. I didn't care. I would rather run all year slowly than a couple of months here and there fast. I realized that I just love to run, at any speed. I wanted 2010 to be injury free.

I spent early January running slowly on a treadmill. I had no real speed. Then I got roped into doing a stupid half marathon in late January. It was a very small grass roots race called: The Fu*king Freezing Frozen Half Marathon. The course was unmarked. There was no water on the course. No volunteers. The race went along the lake and partly on ice.

Unofficially, I won the race. I wrote unofficially because there was no race clock and it was on the honor system. I was the first person back to the start, thus the winner. I hadn't planned on racing it. Less than 50 or so people started the race. I ran up to the front where there was a small group of about 8 men running.

I tried to say hello and make some small talk. None of them were nice. I was an outsider. They must have been some sort of little club or something. So, I grabbed a gear and left them all well behind me. I was so disgusted after the race that I went immediately home.

Next came the Lakefront 10 miler. Then the Magellan Half Marathon. And in June the MC200, a relay race from Madison, WI back to Chicago. Awesome race. Here is a picture of my team gathered at the finish line. I ran the last leg from Evanston to Montrose Harbor, thus I am wearing no shirt.

During the MC200, I ran 3 legs. My second leg started around 4:30 am somewhere in Wisconsin. Though it had been extremely hot the day before, by the time my 2nd leg was starting I was cold. In fact, I was shivering.

The weather was very spooky. It was foggy with tons of moisture in the air. And I could barely see 5ft in front of me. I waited at the transition area for my teammate. For safety, we had to run with lighted vest and a light strapped to the head. It was odd feeling and looking.

As it turned out, my teammate ran the last part of his leg with a runner from a different team. They both came through the transition area, made the exchange, and we were off. I wasn't planning on running with the guy from the other team, but he told me to come on. So I went.

I have no idea who he was, but we flew. Though I was wearing a Garmin that displays pace, I was afraid to look at it. My body told me I was clipping. I wish I could recreate that morning as I ran through it.

There I am with a light strapped to my forehead running 6:15 miles in the middle of no where through a dense fog. And talking to a total stranger every step of the way. He and I were racing in a way. I don't think either of us could have dropped the other. He would pick it up for 200 meters or so and then I would do it. It was strange because neither one of us said anything about the pace, but I think we were thinking the same thing.

When we finished that leg 5 miles later, we shook hands and thanked each other for pushing us beyond where we thought we could go. Looking back on that early morning just a month later, it seems as if it was a dream. A very surreal dream. I had no business running that fast based on fitness level.

Though I did these races, I wasn't really training hard. No speed work. Just running when I could. I joined the Chicago Area Runner's Association (CARA) and volunteered to lead a weekly long run pace group.

CARA has a marathon training program that builds towards the Chicago marathon. I figured it would be fun to help some others train towards their race goal since I wasn't planning any fall marathons. 2010 was supposed to be an easy year for me.

Last year at this time I was injured. Same in 2008. It's almost August and my legs feel great. Over the last month my easy pace has gotten faster on its own with no speed work. I have been running in the middle of the afternoon when it's hottest. This might sound stupid, but I have my reasons.

I like to run because it's the only time of the day I am truly alone. No people. No pets. And no phone. It's my time. I feel free when I run. I am also a sun lover. I suffer winter depression due to a lack of it.

Apparently, I also like to sweat. A lot. This might sound gross, but I simply love running along the lake in the hot sun wearing almost no clothing (shorts and shoes, of course) and watching the sweat bead up on my skin. It tells me I am working.

And when I finish that 60 or 75 minute run, hose myself off, and sit outside until the sweating stops, I am rewarded by a tremendous feeling of contentment. And it's addictive. Really addictive.

Running is my stress reliever. I know some people like a stiff drink after a rough day. I prefer an hour run. A good run can balance out a terrible morning and keep me mentally healthy.

I wish I had words to describe what it feels like to be in really good form, go out on a run, and just fly. When you're in outstanding shape, every now and then you experience a run that's just short of magic. Or it might be magic.

The stride is light and not forced. It seems as if the feet are barely touching the ground. Breathing is steady but relaxed. And the really weird part is that it seems as if it's just happening on its own. Or to put it another way, like your body is off for a run on auto-pilot and your senses and consciousness are along for the ride but doing none of the work.

I would have never predicted but running has become the glue that holds the adult version of myself together. There are other ways to keep me in shape. I am no stranger to cycling, swimming, and various other cardio machines. But minute for minute, running pays off the best. For me.

I have decided to register for a fall marathon after all. Why not? With my current fitness level, 10-12 more weeks of training should bring a sub 3 hour race if I am smart about it, meaning I don't get injured.

My fastest marathon has not been run yet. I have yet to get to the starting line 100% prepared, in peak form and ready for that race. My first marathon back in 1996 was about as close to meeting that criteria as I have experienced. But I hadn't worked on being a fast runner.

And I will never be fast. Well, Kenyan or Ethiopian fast. Compared to elite runners, I am as slow as a glacier. Here is an example. My 2008 Chicago Marathon time was 3:04:43. That's an average per mile pace of 7:03. By way of comparison, in Berlin the month before, 35 year old Haile Gebreselassie destroyed his own world marathon record of 2:04:26 by running a 2:03:59. That's an average per mile pace of 4:44. I can't run even one mile at that speed.

He did 26.2 of them and finished like this...(notice the guy on wheels behind him)

Runners run for different reasons. Some are fast. Some slow. Some run lots of miles. Some not as much. Some race. Some don't. Some are old. Some are young.

But all runners, run.

When The Incredible Is Credible

2010-07-22T22:13:00.001-05:00

In April I felt betrayed by a jury that didn't want to be in court. If you recall before the trial was over 2 had gotten off the jury and another person tried to be excused. In that case there was no physical evidence. Instead there was testimony from felons that conflicted with other witnesses' testimonies.

At the end of the trial, I felt the State had proven my client might have done the crime. After all, he was there, but so were plenty of others that went unaccounted for. And I argued strenuously that might have is not guilt beyond a reasonable doubt.

After that case, I felt betrayed by that jury. They took 45 minutes to decide my client's guilt. They wanted to go home and so on a gorgeous April afternoon, they went home after throwing my client's life away with little or no thought.

I was really shook up after that. I had tried a good case. And I felt I had won, but I just had the wrong jury.

Fast forward to this week's trial. My client was adamant about wanting a jury trial since day 1. I told him what happened in April shortly after that verdict. I told him I was scared of getting another jury that didn't want to be there.

If the jury system has one serious flaw, it's that it's taken for granted jurors will do their jobs. My experience tells me otherwise. This trial was somewhat similar: no physical evidence tying my client to the crime. The State's case was made up entirely of testimony from lawless felons who had changed their stories during the investigation numerous times on numerous key points.

From a read of all of the witness statements along with a trip to the crime scene, it was clear to me they were lying. It couldn't have happened as described in police reports. From the first moment I met this client, he maintained he was innocent. After visiting the crime scene and talking to locals, I believed him.

This client was so sure of his innocence, he was proceeding to jury trial pro se until the point I stepped in. They police had the wrong man. He had spent months reviewing the police documents in jail. And to his credit he found every single inconsistency in the witnesses' statements. Though I doubt his ability to handle his case pro se, I admit he knew exactly where to attack the State's case.

His case was continued repeatedly, but trial finally started Wednesday July 21, 2010. By this time I had convinced him that I trusted a judge over a jury in a credibility contest. During motion hearings or bench trials, the judges take copious notes and even ask questions of the witnesses. Jurors probably day dream.

He finally agreed and so we started the trial. I spent all of the first day impeaching the State's civilian witnesses. Then when the detectives testified, I perfected every single impeachment. The testimony of all three witnesses was entirely inconsistent and not one corroborated any other. But, all three witnesses testified my client was the shooter. Where he was when he shot and where the victims were when shot depended on who was telling the story.

After the close of the State's case Wednesday evening, court adjourned. I spent all of Wednesday night and early Thursday morning drafting a closing where I addressed every lie and inconsistency heard in court on Wednesday. I did this without the benefit of a transcript. I ended up with 2 entire pages of single spaced descriptions of untruths from all 3 witnesses.

I pointed out where their stories didn't match. I noted where their trial testimony was inconsistent to statements given to detectives. There was a ton of this material. I had clear examples where all 3 witnesses had lied in court on Wednesday.

Added on top of the lies, I added the criminal backgrounds of the 3 witnesses. One of them was a career criminal. On cross-examination he admitted he couldn't remember how many times he had been to prison or how many felony convictions he had. I think I got out at least 12 and moved on. At one point he gave me the cross-examination dream answer, "if you say so." I love that.

One of the victims had two felony convictions, though he's only 19. And the other witness denied twice having any current cases, but admitted when I asked him if he's currently on house arrest for a pending felony drug case. He also had 2 prior felony drug convictions.

I called a mother and son who were neighbors with my client. They both testified my client was down the street in front of their house when the shooting happened. Neither witness was impeached or shown to have any bias. The mother, who is a 61 year old disabled diabetic, was not shook on cross. And her son also stood up well.

Finally I called my client. He testified he was down the street talking to the son when the shooting happened. The mother had just came home before the shooting. She was walking up her stairs when she heard the shots. She opened a hallway window. She looked outside to see my client still standing there with her son. The shooting took place more than 200 ft down the block. She told them both to come inside.

All 3 of the State's witnesses testified my client was indeed down the street with the son prior to the shooting, so it wasn't like I created that location and anchored my client there. The State's witnesses testified they came to where my client was and had words with him. But then the witnesses left and went somewhere else depending on which version of the story was being told. But ultimately the 2 victims ended up walking down the street and were eventually shot.

The State argued that my client later left from the yard he was hanging out in, went somewhere, grabbed a gun, changed clothes, and then popped out from a gangway down the street and shot the victims. Of course, my witnesses and my client testified he never went anywhere and was where he had always been when the shooting happened.

When I gave my closing argument, I went through the extensive list of lies and inconsistencies of the State's witnesses. I pointed out that they had all lied to detectives and then took an oath and lied during the trial. Then I said:

As the court knows, the burden on the State is to prove guilt beyond a reasonable doubt. I say they didn’t come close. They only thing that was proven beyond a reasonable doubt is that State Witness A, B, and C came into this honorable courtroom, took an oath to tell the truth, and then sat in the witness seat and lied repeatedly.

It is fundamentally important to our system of criminal justice that what was attempted in this courtroom is not allowed to happen. And that is that anyone off the streets can come into a courtroom of honor and nobility and lie in an attempt to deprive an innocent man of his liberty. I shudder to think such an outcome could happen to Mr. Client or anyone else based solely on the testimony this court heard from the State’s civilian witnesses.

In my heart, as an American and a veteran of our armed forces, and in my brain as an attorney and a member of the Illinois Bar, I cannot accept that with the evidence this court heard, the State has met its burden.

I quickly wrapped up. Then the State offered rebuttal. The judge then gave a 15 second ruling. He said the State's witnesses were credible, the defense witnesses were not credible, and the defendant was a liar. That was literally all he said.

When I heard this my heart sank and may jar hit counsel's table. My witnesses were not credible? Based on what? The defendant is a liar? Based on what? And to call the State's witnesses credible is in insult to the word. If they were credible, I want nothing to do with the credibility club.

My client's sentence will be tantamount to life. There really are no legal grounds at this point for a new trial. All of the pre-trial motions went in my favor. There was no prosecutorial misconduct. It was a very clean trial and I appreciate that the State kept it fair. So far in my trials there have been few objections. I know the rules and I play by them. The State usually does the same.

His only hope is that the Appellate court rules there was a failure of proof and outright reverses his conviction. I have hope because I have seen this happen on similar cases. Unfortunately, most reviewing courts give deference to the trial court's findings on credibility issues. But in this case, I made a lengthy record calling into question the credibility of the State's civilian witnesses. A very lengthy record.

And since my witnesses were in no way impeached, perhaps this will have a shot someday on appeal. Or perhaps he will prevail on an ineffective assistance of counsel claim and get a new trial. If making me look like a poor attorney gets this man a second trial, I am all for it. I just hope my client makes it that long.

One of the most uncomfortable feelings as a defense attorney is trying to console a client just found guilty of a crime like this. Trying to explain this verdict to the family is also not pleasant.

I told him I was sorry. I tried to offer hope. I told him the judge got it wrong. And I am looking through the holding cell bars at him knowing he's going to eventually get 52 years to life in prison, but I get to go home and sleep in my bed. That felt so wrong.

I wonder if anything I said even seemed sincere. If I were him, would I believe me? Does he believe that I cared about him? Or was I just there getting paid and couldn't care less at the outcome.

No, Mr. Client, I know you're innocent. I have known it all along. And part of me felt like it died when the judge read his decision. It has nothing to do with my ego. Sure a not guilty would have brought minimal and short-lived bragging rights, but that's not why I am in this. No, Mr. Client, I took your case because I truly believed in your innocence and wanted nothing more than to free you. That's why I am in this.

But I failed you. The system failed you. You got no justice. You got processed.

www.schantz-law.com

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My Morning

2010-07-20T19:40:00.000-05:00

This morning I had a motion to quash arrest and suppress identification set for hearing. I didn't set it for today, the judge did. Even though I told him that I have a very serious trial tomorrow, he still set his hearing for today.

I knew last week I wasn't going to be ready. I already had a motion to quash arrest and suppress evidence set for the 3rd time on Monday (yesterday). I knew that hearing was going to proceed. I went to the courtroom and told the prosecutor I wasn't going to be ready.

Late last week I called the prosecutor and left a message that I wasn't going to be ready. Yesterday morning before my motion hearing downstairs, I went to the courtroom again. And you can imagine what I did. Yes, I said I wasn't going to be ready.

This morning came. I went into chambers with the prosecutor. I told the judge I needed a continuance. He asked why. I told him about tomorrow's trial and that I didn't have time to prepare. He asked when the trial was set. I told him before his hearing set. Then he asked if I told him about the trial. I said, yes.

He said he was going to get the transcript the last time the case was up to see if I really told him. Then I reminded him that he wanted to set his hearing for Wednesday, and I told him I had a trial that day and even told him which courtroom and judge. At that point I think he knew I was telling him the truth. He gave me the continuance.

After I left court, I had to drive down to a pretty rough neighborhood. It's the type of area where every other building is boarded up and there's trash everywhere. I was there to serve subpoenas for tomorrow's trial. I couldn't find a process server that would go in this neighborhood. Last month, I spent about an hour down there one day taking pictures and talking to residents. I had no problems.

I rang the buzzer on the building. Of course the intercom doesn't work. A head popped out of an upstairs window and asked me who I was looking for. Standing there in a shirt and tie, I probably looked like a cop.

"I am looking for Witness A. I am not poe-leece, I am a lawyer." After a minute or so, I was told Witness A & B were on their way down. Score! Got them both.

A couple of minutes goes by and I hear someone coming down the stairs. Then I see a shadow but there's no light inside the building so I can't see who it is. But quickly I realized it wasn't either Witness A or B.

The person that hit the landing and unlocked the door was smoking the end of a joint, or roach if you will. It was maybe 10:00 am. "Whatcha smokin' on?" I asked. The person just smiled and french inhaled the next hit.

Then he spoke. "He ain't shoot them boys." But he didn't say "he". He used my client's name. I told him I know he didn't. I gave him a one sentence synopsis of my case and he understood and agreed. "People around here are saying he's going to get life."

I explained it was my job to prevent that from happening.

On one hand this was a strange encounter. It's early in the morning. I am standing on the stoop of a run down building in no-man's land talking with someone that's already high and getting higher by the puff. And this guy knows exactly what happened, but wasn't there to see it. Or so he says.

But on the other hand it seemed completely normal and nothing about the situation made me feel creepy, uneasy, or paranoid (I didn't inhale, obviously).

"He's gonna beat this case" was the last thing my new friend said to me.

www.schantz-law.com

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The Dangers of Blogging

2010-07-19T17:24:00.000-05:00

A couple of weeks ago I did something I rarely do. I Googled my name. And I was amazed to find some of the strange corners of the internet where it appeared. More often than not, the name was attached to a blog posting of mine.

I use Google analytics, or at least it keeps an eye on my blog traffic. There isn't much. But I really thank those that do read it. I can look on a world map and see where my small collection of readers live. Not surprisingly, most live here in the Chicago area. But I have a couple readers as far away as Japan and Australia. For them, domo arigato and well, thanks mate.

I didn't start this blog for any articulable reason. It wasn't to educate. It wasn't to persuade. It sure as hell wasn't for marketing reasons either. I write here to vent mostly about problems I regularly encounter in the local criminal justice system. Other than a single Twitter tweet whenever I publish a new post, I don't advertise this blog in any way. It may be blog rolled or linked in a few places, but that's about it.

Over the last 7 or 8 months, I have slowly opened up more of myself in my writings. I have written about fears and insecurities I have. I have shared the best of my days and the absolute worst of them. Writing about bad days can be cathartic. And for some reason there's never enough people around with which to celebrate wins.

But I am not usually such an open person, especially with strangers. I am very guarded and am slow to let people get close to me. I have trust issues when it comes to other human beings. I typically put more trust in animals, like my dog for instance.

I ask myself why I have written so much about personal feelings here on the internet, an electronic universe with no boundaries. There is little privacy on-line these days. And because of that it's impossible to know who is reading what I write.

Could something I write ever be used against me? Absolutely, and therein lies the danger of blogging.

Have you have ever paid attention to senate confirmation hearings of nominated Supreme Court justices? I find it strange that the nominees are sometimes put in the hot seat over things they wrote as law students. Do we really need to reach back that far? Apparently some think so.

This blogging stuff is still pretty new. But well within the next 10 years, people's blogs are going to haunt them. Just based on my own blog content alone, I will never be appointed to or elected...well...pretty much anything.

Whenever I hit the Publish Post button at the bottom of this text box, I have created a digital fingerprint that will never go away. I own it. I will always own it. The fingerprint could be open to interpretation, but in my case, I doubt it. I want someone reading here to know exactly what I am trying to convey. This is why I write in short sentences with no flowery language.

I never had political aspirations. And I don't want judicial power. If I was afraid that in 10 years something I wrote last December would be used against me, I wouldn't have published it for anyone to read.

How sad would I be to have something I wrote in the past thrown in my face? I guess that depends. I would never want to work for anything or anyone that would go through such measures in the hiring process to begin with.

But if one day when I am in my mid 50's, I feel like running for city council of some Rocky Mountain town, I could be in trouble. I have written strong opinions about firearms and could be classified as a social liberal.

Some blog and just recycle news gathered elsewhere. But some of us write about issues close to us. And some of us even take sides, call a spade a spade, and offer opinions. The reason is that we can. I have no editor. I have no boss. It's my blog. If you don't like it, don't read it. It's quite simple.

I do try to be fair in the telling of my stories (that's really all I do, tell stories). I try not to write in absolutes. I base my opinions on my own observations and not conjecture. And I think I am pretty fair. I am certainly not extreme.

But some could incorrectly conclude I am a criminal loving, gun hating, freer of murderers and rapists. That is all wrong. But if certain paragraphs from a posting were cut and pasted along with paragraphs from other postings, small-minded people might find argument in support of such a wacky assertion.

A danger of blogging is that you're posting potential future ammunition. Words written and published today could be spun around, attached to other words, and used as a sword against their very creator, you.

Why have I opened up? Perhaps because I can't sense or feel rejection. I don't know how many people read what I write here. I feel like I have nothing to lose. If I write something that upsets someone to the point they no longer read me, I won't ever know it. And if everyone stops reading, I will be back to where I started. But the reasons for this blog will still be very much intact, thus I would lose nothing.

Again, I don't care. I am who I am. It's all here, out in the open. No excuses. No apologies.

www.schantz-law.com

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Cop Killers

2010-07-18T20:41:00.000-05:00

This morning an off duty, uniformed police officer was shot and killed outside his home on the city's south side. It might have been a car jacking gone wrong. The officer was over 60 years of age and near retirement. His most recent assignment was to guard Mayor Daley's home.

I admit I regularly read the Chicago Breaking News stories on the Tribune's website. And when something terrible happens, I pay close attention to the reader comments. Most people appear to be completely frustrated by the violence in Chicago. I know I am.

Just 2 weeks ago, another Chicago police officer was shot and killed with his own sidearm. And this May, a younger off-duty police officer was shot and killed. The assailants were trying to steal his motorcycle.

None of these recent killings involved officers who were on duty, thus like so many other people murdered senselessly, they were in the wrong place at the wrong time. The fact that they were sworn police officers has naturally sensationalized all three killings.

I will never argue that one life is worth more or less than another. But when police officers are killed, no matter the circumstances, people get upset. I read daily about gang members shot and killed. I won't say that no one cares. That wouldn't be true. But the comments on those stories are typically aimed at Mayor Daley. They read like this "I love how your handgun ban is working Daley. Way to go. Aren't we truly safer now. Thanks."

When an officer is killed, commentators typically offer prayers to the family. But then the Mayor gets beat up and ultimately blamed for pretty much everything. Some people seem to think that if everyone was allowed to carry a concealed weapon, the violence would somehow go away.

I don't really understand that line of thinking. But I am open to anyone who feels that way to comment here. Having everyone armed just reminds me of the Wild West and the open frontier. Now take that picture and put it inside the inner Chicago city where population density is a problem and I see a recipe for disaster. I could be wrong, however.

Last week there was a gang related shooting in Lakeview, my neighborhood. Also in Lakeview in the last couple of weeks were 2 home invasions. One victim was a retired University of Illinois professor. The other victim was a young woman who was choked by her assailant.

There has also been a couple of shootings recently in Uptown, which is just north of Lakeview. And even Evanston, home of Northwestern University, has seen a couple of shootings and at least one murder this summer. It doesn't get more white bread than Evanston, except maybe Wilmette. But I digress.

The temperatures have been abnormally warm lately. Cops tell me occurrences of violent crime rise with the mercury on the thermometer. I believe this to be true. It seems there's more shootings and murders during really hot weekends. And last night, as usual, most of the gun firing took place between 1 and 3 am.

But not all violence happens when it's dark outside. In fact, all 3 police officers were killed in broad daylight. And last week a 16 year old boy was murdered on his bike early one morning. Then that afternoon, another 16 year old was shot. The gang shooting in Lakeview last week happened in the early afternoon. A man was shot and killed in his car early this morning on the west side.

The big difference is that the cops tend to catch daytime offenders easier. As far as the officer that was murdered this morning, reports claim 3 young men were involved. I am sure it won't be long before 1 of them is caught. And 1 of them will certainly give up the other 2.

The streets talk. And people in custody talk. These guys will be caught. I am confident. It wouldn't surprise me if they were all in custody right now, though there's no report of this. When a cop gets killed, the shooter is caught very quickly. When a cop gets killed, other cops take it personally. I certainly can't blame them. It's a tough job.

Even though none of the officers were on duty, at least one was in uniform. There's an unwritten rule about killing cops: you don't. Period. Killing an on-duty cop can bring the death penalty. I doubt if the bad guys this morning asked the officer if he was still on the clock before ending his life.

It is truly a lawless state out there if uniformed police officers can be killed in front of their home, on duty or not. Perhaps the officer was wearing a coat and maybe the bad guys didn't recognize that he was a cop. I wasn't there, so I don't know.

I think most of me wants to believe that this couldn't have happened. A man in his early 60's and wearing a police uniform was murdered in broad daylight, in front of his house by people that wanted his car.

If that's exactly what happened, I may lose all hope. I may lose hope in this city. I may lose hope in people. I may lose hope in my profession. I may lose hope in everything.

I am pissed.

www.schantz-law.com

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Surrounded by Liars

2010-07-14T16:41:00.000-05:00

On Monday I conducted a hearing on a motion to quash arrest and suppress evidence. My motion was denied. Since the client had no background, I was able to negotiate a pretty good plea deal for a special type of drug probation. If he completes the 24 months of probation satisfactorily, the charge is dismissed. He can then also have the arrest expunged.

The police alleged that my client ran a red light while turning from a side street onto a busy boulevard. He was pulled over. When the officers approached the car, they noticed loose marijuana in his lap. He couldn't produce a driver's license or insurance card. They ordered him out of the car and noticed that he was sitting on a bag that contained over 100 grams.

That was the police version of the case.

At the hearing, I called both officers as witnesses. Sadly, they stuck to the story. There was only minor deviation between their testimonies. But they both testified to what I wrote above.

Then I called my client to testify. He testified that he noticed the cops behind him several blocks before he was pulled over. He stated he was never on the side street as alleged. He denied running a red light. He further testified he was never asked for his license or proof of insurance. At the time his license was in his wallet which was in the coat on the passenger's seat. And his insurance card was in the glove box.

Instead, he said, the police walked up, ordered him out of his car, and began searching it. There was marijuana in his car hidden under the gear shift.

The prosecutor attempted to trick him on cross-examination, but he didn't waver. Why? He was telling the truth.

I rested. The State rested. I stood up to argue.

I told the judge that since Arizona v. Gant was decided, the police suddenly started seeing contraband in plain view during traffic stops. I said it wasn't a coincidence. I said that I didn't like calling sworn officers liars, but argued their testimony wasn't credible. I asked the judge which was the more likely scenario:

1. The defendant, while sitting on a big bag of weed with some even scattered on his lap, ran a red light on a busy street when there was no evidence he had been smoking since no paraphernalia was recovered. Or,

2. The defendant was pulled over because the cops wanted to search his car and they found marijuana hidden under the gear shift?

The judge found the testimony of the police credible. I wasn't too surprised but it deflated me. This scenario happens too often for my liking. Often as a defense attorney, we know a witness is lying but can't show it. It's very frustrating.

Many, if not most, of the judges show too much deference to the police in my opinion. And it really burns my hide to sit and watch a sworn police officer perjure himself without a thought. The fact that I can't show that they're lying makes my blood boil.

The perjury isn't limited to small weed cases like this one. It gets more foul when they lie at hearings in murder cases where the client faces the rest of his adult life in prison. The liars just don't care. And why should they? They are not discouraged nor punished for doing it.

I stand as an officer of the court and won't tell the smallest lie to anyone in the courtroom about anything. I never even claim I have a trial somewhere else just to get out of a scheduled hearing. But sworn police officers regularly come into court and take a second oath that, in practice, is meaningless.

I am not bashing all of the police officers here in Chicago.

Just the liars.

www.schantz-law.com

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False Confessions

2010-07-12T18:36:00.000-05:00

The Chicago Tribune recently published a story on its website about false confessions. I am not sure if it made it to print, but I wouldn't doubt it. It's not hard to see what prompted the story.

Last week it was reported that DNA evidence will likely exonerate a man who had confessed to killing his 8 year old daughter and her 9 year old friend. As it turns out, DNA recovered from the crime scene matches a different man who happens to be in custody in a different state.

And not too recently, a man who had confessed to killing his 3 year old daughter was freed after DNA excluded him as the killer. Riley Fox's father allegedly confessed to not only killing his daughter, but to sexually assaulting her as well.

Kevin Fox, the father, spent 8 months in jail before DNA evidence freed him. A Will County jury later awarded him $15.5 million dollars in a civil suit against the Will County Sheriff's detectives. That award was reduced to $9 million on appeal.

Both of these stories happened here in the Chicago area, thus the recent story in our local media.

Why would someone confess to something horrible that they didn't do? And in these two cases, the act was murdering one's own child. That's about as horrible as it gets. So why? Why do it?

The answer is simple: they have been pushed beyond their breaking point. And this is done on purpose.

Everyone remembers the allegations of torture being used on detainees in the war on terror. Tony Lagouranis wrote a book called Fear Up Harsh. I read it. Tony was a U.S. Army Arabic translator. He worked in Iraq, including Abu Gharib, among other locations. The stories told in his book are on the frightening side.

Besides the human rights issue that discourage torture, there is one other major reason not to use torture in interrogations: it puts into question the accuracy of what the tortured said.

If you were to pull out my fingernails slowly with a pair of pliers, I would tell you anything you want to know. In fact, I would make stuff up if I thought it would make you stop.

That last sentence is why I believe innocent people confess. They want the interrogation to stop. I think it's that simple. There are probably other factors at play, but ultimately, I think people get worn down and can no longer resist repeated suggestiveness.

I am not implying that local police use water-boarding or other quasi-physical torture techniques. But a simple lack of sleep coupled with hunger and extreme mental bombardment obviously breaks some people. In truth, we all have a breaking point. It's part of being human.

Police interrogators are trained to find psychological vulnerabilities and apply pressure. It's not hard to find such areas on people in custody suspected of heinous acts. Add in the fact that, as in the 2 cases around here, the person's child was recently murdered and you have a balloon about to pop.

It is now the law in Illinois that all murder interrogations must be video recorded. That law was not in effect when the two fathers here in the Chicago area, confessed to murdering their children. However, at least one of their confessions was videoed.

The great thing about the video is that the cops know Big Brother is watching. And they know the video is going to be turned over to the defense attorney and possibly played at trial. With the video machine running, any and all monkey business will be captured, thus detectives tend to follow the rules.

I have seen interrogations stopped as soon as the suspect asks for a lawyer. I feel good about this, but sad that it took video surveillance to guarantee that it would happen.

But just because the cops can't beat a confession out of someone, doesn't mean they can't still wear them down. Police interrogations follow the Reid Technique. And it's quite effective.

The article on the Tribune's website described the methods of the Reid Technique as follows:

...interrogations are "well-thought-through psychological manipulations to get a confession."

Police do that by first developing a rapport with suspects. They then give them their Miranda rights, though in such a way that suspects feel they are being uncooperative if they invoke them. Finally, he said, police confront a suspect, saying they know he committed the crime but offering a way out that acknowledges guilt but to something less heinous.

I found this description to be dead-on accurate. Back in April, I was able to get a murder case dismissed. Naturally, I wrote about it because of how rare it happens. But in that case the interrogation was almost identical to what the Tribune described.

That case involved a murder that followed a failed car-jacking. The interrogating detective, as they all do, claimed he was the suspect's friend. He was there to help him. I haven't watched the video in months. But the detective said things like this:

I don't think you're a bad guy.

I don't think you planned for this to happen.

I don't think you planned for him (victim) to end up dead.

I think you just wanted his car.

Then the detective went a step further. He knew the suspect has a young son. He created a scenario that went something like this: if your son stole a bag of chips from a store how would you feel if he lied to you by denying it, when there was proof he had really stolen the chips? Wouldn't you want him to tell you the truth?

Of course the suspect indicated he would want his son to tell him the truth. Then the detective waited to see if he would take the bait. But he didn't.

The suspect, who later became my client, never broke. He maintained from the start he didn't know anything about the murder. But the detective wouldn't give up.

We know you did it. We have proof you did it. Other people know you did it. You know you did it. Stop this bullshit and just admit it.

In the end, it didn't work. Several hours later, the suspect eventually asked for a lawyer. The interrogation stopped. He was charged on next to no evidence. And what evidence they had was fabricated by the police, thus the later dismissal. A civil case may or may not come from the entire ordeal.

Last fall I was at a 2 day seminar downstate. It was dedicated to death penalty cases. One of the topics was false confessions. Currently, there are 2 very well known researchers that have done work on the subject, Dr. Richard Leo and Dr. Richard Ofshe.

Dr. Leo spoke on this matter at the seminar I attended. Dr. Leo described the phenomena of false confessions, his research, and case studies. He asked that we all recognize that they do happen and quite frequently.

According to the Tribune article, up to 25% of wrongful convictions involved false confessions. That's a very significant number and cannot, nor should not, be ignored.

Reid & Associates, creators and purveyors of the Reid Technique of interrogation, now recognize false confessions exist. They have created a chapter in their manual dedicated to this topic. However, and not surprisingly, they marginalize it's occurrence, claiming only minuscule rates.

As an attorney, a confession is very difficult to deal with. Motions to suppress post-arrest statements are granted less than 1% of the time. If judges don't understand false confessions, asking a jury to buy it is a tough sell.

We were all advised to retain an expert on the subject, like Dr. Leo or Dr. Ofshe. That's sound advice if the money to hire them is available. A great number of the Illinois death penalty cases are litigated by public defenders. And Illinois makes money available for expert witnesses to those defended for free. This is good.

But what about in non death penalty cases? Most Illinois murder cases do not involve a possible death sentence. If the defendant confessed, most likely he's done. There are simply too many cases to sort out legitimate from false confessions.

Where detectives fail (and sometimes prosecutors too) is from lack of objectivity. They bend facts and evidence around their theory of the case. It's supposed to be the other way around. Once they make up their mind what happened and who did it, evidence to the contrary is ignored.

If they think the person waiting in the interrogation room is the bad guy, then he is the bad guy. And all questioning will be centered around that conclusion. Should there be any sort of an investigation, it will also revolve that conclusion.

Largely, I think the cops usually get the right person. But I have been part of too many cases that resulted in charges that followed sloppy and incomplete police work. If I can go stand at the crime scene and clearly determine the version of events the cops bought couldn't have happened, they can to. But more importantly, they already should have.

The Chicago criminal justice system operates with a fast-food mentality: It's cheap. It's quick. But it ain't always right. We defense attorneys are like the patron that checks the bag for accuracy before we pull away. But most don't. Most are in a hurry, thus the drive-in meal choice. And as Joe Pesci once said in a movie "they fu*k you in the drive through!"

Amen.

False confessions exist. There is substantial proof. Instead of the criminal justice system looking at a confession as compelling proof of guilt, perhaps it should be viewed with suspicion.

The average felony suspect is not intellectually sophisticated. The interrogating officers are trained and skilled in their art. It's really not fair. I don't think most suspects really understand what's going on.

I have personally sat through an interrogation. I am educated. I can smell bullshit a mile away. But the client sitting next to me was not and could not. The detectives dangled an imaginary carrot in front of the client.

Just tell us (what we want to hear) and you will get to go home.

Why is that imaginary? Because the suspect isn't going home if he gives the detectives what they want. No, he's buying himself a case. I have told many, many people that if they are taken into custody never tell the cops anything, no matter what. Ask for a lawyer and shut up. If the cops have enough evidence to pass felony review, they already had it when you were picked up. Don't help them out and give them more.

But so many young men fall for tricks and traps. The coercion is mind blowing. And it's effect spine chilling. Imagine you're 18 and picked up by the cops. You're scared. You're put into a small room with no windows and no furniture. You're handcuffed to the wall. You're alone.

After several hours of being alone, you're confronted with an allegation of which you're innocent. You haven't slept. You're hungry. You want to go home. You deny the allegation. You're accused of lying. You're told there's proof of your guilt. You're told there's video. You're told there's eyewitnesses.

And then you're told that you're being linked to several other crimes. Lastly you're told that if you ever want to see your family again, you will sign a confession. You're given some McDonald's to eat. You're allowed to go to the bathroom. You're surrounded by friends. Some papers are put in front of you. You sign them. You're thanked.

And you're screwed. Badly.

You're not going home. You're going to spend a year in the county jail and perhaps several more in prison. Life, as you knew it, is officially over.

The above scenario never happens if a lawyer is requested. It never does. In truth, the cops don't go call you a lawyer. I rarely get calls to go to a police station, except for the pro bono work I do for First Defense Legal Aid. And even those calls are not coming from the cops. It's family of those just arrested that seek FDLA help.

Why are so many people unable to say 4 magical words: I want a lawyer.

www.schantz-law.com

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Thinking About Life

2010-07-09T14:45:00.000-05:00

Last night I was lying on my bed. My eyes got lost watching the ceiling fan. From no where came the realization that one day this will all be over. Yes, some day I am going to die.

I am not a morbid person. I rarely think about death. But I do things that might delay the inevitable. I eat reasonably well. I am in very good physical shape. I don't indulge myself in risky behavior. And I tend to avoid situations where early death lurks, like cliff diving or swimming with large, hungry sharks.

Am I behaving in ways to delay death? Or am I doing things to make life today, better? A little of both?

All of my grandparents are dead. One grandmother was killed by a drunk driver when she was 50, thus why I don't handle DUI cases. My other grandmother just died recently after being slowly consumed by Alzheimer's. One of my grandfathers died over 25 years ago during an operation to remove a lung destroyed by emphysema. And my last grandfather also just died a few years ago quietly in his home after playing 18 holes of golf. Of all 4 grandparents, I want to go like the last one. His death came so suddenly, his eyes were open when his last breath left him.

I was also fortunate enough to have a wonderful great-grandmother until my mid 20's. She was a great woman and is largely responsible for where I am today. She was in her 90's when she died of old age. Her mother, my great-great-grandmother, was also alive well into my teen year and reached 100+. Sadly, however, I never met her.

Next year I turn 40. I am not fixated much on it. I still feel very good and can outrun men in their 20's. My hair does have a little gray in it and I have some light crow's feet around my eyes. Law school really put some age on me.

I am not one to be hung up on aging. Sure, I want to look young. Who at 40 doesn't? The only time I wanted to look older was when I was younger. I can't see myself ever coloring my hair to hide unwanted coloring. Having plastic surgery on my face is out of the question too.

In a lot of ways, I think my body is still getting better and better every year. I still believe I haven't ran my fastest marathon yet. And these last couple of years have seen me at my leanest body fat wise.

In other words, I still think I am a long way from the gradual slide down. I haven't peaked yet.

But I have to face facts. The average life expectancy for a white man in American is still mid 70's. In fact, only about 10% ever see age 90. In my mind, I have put the number 80 on the board. My last grandfather made it to 83.

With age 80 as a working scheduled check-out age, that means very shortly I will be half way there. Half way through life. Really? Wow. How incredibly short life is. I just got here.

When I pass, what will be left of me? Sure there will be some people who claim to have known me. I am not sure how much family will be around, but I am sure there will be at least a few. Friends? Don't have many.

Let's face it, life is largely a personal journey that's experienced at times in short bursts around others. It really is. But it's from those short bursts of joint experience that bonds are formed. It's not hard to understand the bond among soldiers who experienced combat together.

But for most of life's challenges, we fly through the clouds in a windowless airplane, solo. At least I have. I can't imagine it any other way. Sure I have gone places and seen things with others. However, for almost all of the events that have shaped and molded me into the person I am today, I was alone.

Even if I wrote about, photographed, or videoed events in my life, attempts to capture the true experiences themselves would fail. No one can know what it was like the first time I really heard Dark Side of The Moon. Or how it felt to complete my first marathon. Or get a not guilty at trial. Can I really describe in a meaningful what I like about pizza? No. Can you describe the color blue to someone that's been blind since birth? No.

The reason is that it's impossible to replicate the billions of chemical and electrical reactions that happened inside me. It can't be done. Thus, life is truly a personal experience.

And so I ask again, when I die, what will be left of me? How about this: not much. Maybe that's how it's supposed to be. If I were to create a family tree, I would have to admit I don't know anything about who or where I am from. Anything beyond the grandparents I knew is a total mystery.

On my desk is a very old pocket watch my great-grandfather, Louis L. Schantz, owned. How do I know this? His name is on the back of it. I figure it's almost 100 years old and it still works if I wind it up. His son, Lou E. Schantz, was my grandfather who golfed before he died. I knew Lou E. Schantz. I knew him quite well. But I never met Louis L. Schantz. But my dad did. He told me he always dressed like an English gentlemen, though he was German.

So the only thing I know about Louis L. Schantz is that he wore 3 piece wool suits and probably carried a pocket watch in his vest on a chain. That's it. I have no idea what he did for a living. I don't know where he was born, how he died, or how many brothers and sisters he had. And even if I did, would it matter? How would knowing anything about my great grandfather make my life any better today?

If he had been a wealthy land owner or President of the United States, I am sure I would know more about him. But I wouldn't know the real him. And if a couple of great grand children survive me, they won't know me either. Perhaps they will hear stories of me. Maybe they will read things I have written. And possibly they will see pictures of me.

But they will never know me. But do we really ever know anyone else? Some people don't even know themselves. Don't people you thought you knew well surprise you? It happens.

Don't think I am taking a mid-life dip into the existentialism pool. Because the truth is that, spiritually, I never got out of the deep end. I am not a religious person. I think humans created the concept of eternal life because accepting that once we die it's over, was too much to swallow.

As a species, humans tend to think we're something special. And because we are so special, there must be something different about how our life ends. Someone got the bright idea that perhaps it doesn't. But I think it does. I really do.

99.9% of all animal species that have populated Earth are extinct. Think about that for a minute. Earth formed about 4.6 billions years ago. Modern humans have been around for about 120,000 years. This means that humans have been on Earth for far less than 1% of its history. If the history of Earth spanned an entire calendar year, humans showed up late on New Years Eve. Our existence here on mother Earth is of limited significance.

Humans are not destroying the planet as some claim. That is incorrect. What we are slowly destroying is our ability to live here. But being typically human and arrogant, we think Earth is being slowly destroyed by our actions. Wrong. Nothing we can do is going to make this massive rock spontaneous disintegrate as if hit by the Death Star as Alderaan was in Star Wars.

One day we will be replaced. It's the order of things. And that order is controlled by a power beyond comprehension. Physicists and other really smart people can use mathematics to calculate the size of the universe a millionth of a second after the big bang. But no one can tell you from where all of the mass and energy came. For the religious, enter a supreme being.

I used to think about stuff like this a lot. It caused headaches. Eventually I realized I had no answers and chose to leave it that way. If the history of humans on this planet is of minor significance cosmically speaking, then the 80 years I might be lucky enough to spend here isn't even a drop in the bucket. Rather, my life would be more like a single hydrogen atom from one water molecule in millions that make up a single drop.

If I am of such mortal making, then why do anything? If death is coming no matter what and it's lights out when it does, why should I care about anything? Why was I raised with morals? Why am I not a mass murderer? Why did I go to school as an adult for almost a decade? Why did I join the Army? Why am I generally nice? Why do I pay bills? Why do I bathe? Why do I brush my teeth?

Easy. To make what little time I am actually here as nice as possible. Buddhists believe that almost 100% of human suffering is caused by our own actions. I think that's a spot on observation. You suffer when you want things you can't have. Ever really wanted something so bad it hurt? You get the point.

Were you ever so attached to anyone or anything so much that being separated from them or it completely wrecked you? Are you in love with material possessions?

Most of my actions are done to make life more harmonious. I like peace and tranquility. I value them. I don't have many material things. When I die, I imagine I will own more books than anything else. To date, I have given away more books than are currently boxed up downstairs.

You can't take stuff with you when it's check out time. Having a life whose happiness revolves around such things doesn't make much sense to me. Having a life that's dependent on others for happiness also seems odd.

Given all of this, I am not ready to dispose of all possessions, shave my head, and go meditate the rest of my life. I do like nice things. I enjoy little comforts here and there. I like to travel. And I enjoy a good steak every now and then.

But I don't want more than I need. There was a line in Forrest Gump that went something like this: "Momma always said a man only needs so much fortune. The rest is just for show."

For me, the real currency in life is not wealth, but experience. You have to get off your ass to experience anything worth experiencing.

And when I am done here and it's all over, those experiences go with me. That's what I get to take with me. That which I truly earned. That which became me.

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The Uncooperative Witness

2010-07-08T13:43:00.000-05:00

On Tuesday I saw something in court for the first time. An 18 year old young man was in custody and brought before the judge. What was his crime? Murder? Gun? Drugs? Robbery? Burglary?

Nope. He didn't show up for court to testify.

There was a recent murder trial. Apparently, the alleged murderer confessed his crime to the young man in custody. I assume police found out about the conversation and took his statement. The State subpoenaed him to testify at trial and he didn't show. I assume the State asked for a bench warrant since technically he was in contempt of court. It appears a warrant was issued, thus his presence in custody.

The defendant was convicted without the additional testimony. Sometime after the trial, this missing witness was picked up. On Tuesday he was finally brought before the court of which he was in contempt. He had been in custody for 35 days.

According to the judge, he could have held this young man in custody indefinitely. The judge heard about the young man from the public defender. Then the judge lectured him before finally releasing him. But, he was warned the next time he didn't show up when subpoenaed, he would be locked up longer than 35 days.

As he was walking out of the courtroom I thought to myself that what he did was probably pretty smart. This might shock you. Ignore a subpoena? How could that be smart?

Simple. It might have saved his life. There is an unwritten rule in Chicago streets that you don't go to court to testify. Period. Not for the State. Not for the defense. Stay out of other people's business. You might live longer.

Folks, this is real deal stuff and I am confronted with it regularly. I have an attempt murder case set for trial in 2 weeks. I have 2 witnesses that credibly put my client down the street from where the shooting happened. And neither of them want to come to court. The case was set for trial last month and only 1 of the witnesses came to court. I had to hide her in a different courtroom so she would feel safe.

If I have to drag people to court to testify in my case in chief by having them arrested, how comfortable am I going to feel about calling them as a witness? The answer is not very. They are going to be upset I had them arrested. This makes their testimony unpredictable, which makes calling them as witness a dice roll at best.

I want a cooperative witness or none at all.

I imagine this phenomena has to be frustrating for the State too. My murder trial in April is a perfect example. 2 of the State's witnesses changed their story before the trial began somewhat in the favor of the defense. The State only called 1 of them but impeached her with her grand jury testimony. It's never a good thing to have to impeach your own witness.

But to the State's credit, they tied up the impeachment in closing. They told the jury that her grand jury testimony was accurate. The State argued she changed her testimony at trial because of the unwritten rule about testifying in court. I countered by offering that at some point the witness lied under oath, thus the jury should discard all of it and find her not credible.

In Chicago just being in the wrong place at the wrong time can get you killed. Some feel it's better not to give anyone a reason to kill you, thus the courtroom avoidance.

I would be lying if I claimed not to understand this thinking. It's rough out there.

www.schantz-law.com

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Probable Cause v. Probable Cause

2010-07-07T15:54:00.000-05:00

P.C. is a phrase we criminal lawyers throw around all the time. And depending on where and how it's being used, it can have different meanings. But I wish the use of probable cause at preliminary hearings would stop. It's confusing and misleading.

Preliminary hearings are typically very short in duration with normally one witness testifying. Typically the arresting police officer testifies about the nature of the arrest. Cross examination is very limited and most defendants lose this hearing.

The purpose of a preliminary hearing is for the judge to determine if there is enough evidence in the case to allow the state to formally charge the defendant. The preliminary hearing judge is not concerned about the validity of the arrest and/or search. Without the basic constitutional protections, we in the defense bar are extremely outgunned at a preliminary hearing.

The burden on the state to get a case through preliminary is extremely low. And at the end of testimony the judge says one of 2 things: "finding of probable cause" or "finding of no probable cause."

But probable cause to what?

A lot of people understand the police must have probable cause to arrest and/or search. The mechanics of the law may not be understood, however. But most know the cops can't just walk up and start searching anyone standing on a sidewalk. They need "probable cause" to do so.

And when the preliminary hearing judge finds probable cause, too many people assume the judge was basically saying the cops had probable cause to do whatever they did. Wrong. Wrong. Wrong.

The defense attorney can later file a variety of pre-trial motions and attempt to get the case thrown out without risking a guilty verdict at trial. The 2 motions I use most are a motion to quash arrest and to suppress evidence. In most cases, those two requests are part of a single motion.

Many times the basis for both of these motions is no probable cause. And if there was no probable cause, the actions of the police were unlawful. As a defense attorney, if there is any challenge to the arrest and/or search, this is where it's litigated.

Factual issues are for trial: did the defendant do it? Legal issues are for motions: did the police officer have probable cause to stop and then search the defendant? In a lot of cases, the defendant is clearly guilty because they were found in possession of something illegal. For them, the only way to get out from under the case is a motion challenging the actions of the police. It is in this way that some guilty people "get off".

You might think that if the person is guilty, so what? And if you do think that way, you're thinking like a lot of cops. Many police take shortcuts around constitutional rights on the streets just to make a case. For them, the ends justify the means. We criminal defense attorneys (and some higher courts) are the only folks standing guard in protection of personal rights.

In some respects, motion hearings are sometimes do-overs of the preliminary. However, they are much longer and the officer has to answer all of my questions (within reason). But motion hearings are backwards compared to trials.

Since it's a defense motion, we get to go first. We call witnesses. The State cross-examines them. We rest. And then the State can call witnesses. I get to cross them. The State rests. I argue. The State argues. I rebut. The judge rules.

Most defense attorneys call the arresting officer(s) as witnesses. But now we are on direct and can't ask leading questions. This feels very backwards in practice since we are used to taking cops on cross. And watching the State cross-examine its own police is strange because it's about as gentle as being stroked with a silk handkerchief.

But sometimes, I just call the defendant and rest. If my client can prove up my motion through his testimony alone, I put him on and rest. The State will then have to call their officers to rebut the allegations set forth in the defendant's testimony. This puts me back in my comfort zone of cross-examining police officers.

Sometimes, however, we file motions to get hearings that are quasi-depositions. Serious cases, like murders, are rarely disposed of by motion. I don't think the judges want to throw murder cases out. It's too political.

But by filing a pre-trial motion and conducting a hearing on that motion, I am going to get police officers testifying under oath about the case. I am going to hear things in advance of trial that are not in police records and reports. And I would always call the cops as my witnesses.

In these types of hearings, I want to ask very general, open-ended questions, sit back, and let the cop talk. The more they talk the better. If the testimony changes later, I have impeachment material. If it stays the same, then I have heard it before.

Ultimately these motion hearings are essentially discovery depositions, which are not allowed in criminal cases. What I get out of these hearings is a preview of the State's case at trial.

I don't know if I read somewhere to do these or if I just thought of it. I don't think I invented it, but I am the only one I have seen use it. I filed 2 of these motions in a recent case (a murder). I challenged the arrest and the show-up identification. I had my hearing. I was able to impeach the arresting officer with his own report. As expected, the judge denied both motions.

However, that case was dismissed on the day of trial. I think part of the reason it was dismissed was based on testimony that came out during the motion hearing. Why? It conflicted greatly with the version of the events the one eyewitness gave to my investigator a month later. That interview was recorded, burned to CD, and given to the prosecutor a month before trial. Also, the 3 police officers that testified at the hearing were not consistent with each other or the police records.

Again, this is a motion with merit that I doubt will be granted. However, I get cops on the record testifying under oath about the case. Any time you can get this to happen before trial is a very good thing in my opinion.

In summary, probable cause is usually the issue in dispute in pre-trial motions to quash arrest and suppress evidence (at least in mine). And since probable cause to stop, probable cause to arrest, and probable cause to search all have entirely different meanings based on the situation, it can be confusing. Add in probable cause from preliminary hearings and it's a bigger mess for the defendant and the family.

www.schantz-law.com

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iPhone + iPad = iWork

2010-07-02T15:04:00.000-05:00

A lot of people make snarky comments about Apple products. I can certainly see why. The hysteria that accompanies a new Apple release is nothing short of silly. The iPhone 4 was recently released. I read stories of people that slept outside of Apple stores to be fortunate enough to buy one.

I wasn't one of them. It's a damn phone. Really.

But just because some people seem to lose their minds when Apple offers a new toy, doesn't mean there's anything wrong with the products themselves. I made the switch to Mac last fall. I also bought my first iPhone last fall. Why? The stuff works and makes my life simpler. End of story.

I don't use Apple products for style points or because they are seen as trendy by some. I use them because, in my opinion, they are better designed and built than PC's and I prefer the iPhone to a Blackberry, of which I owned no less than 3.

I use MobilMe for my calendar, which wirelessly syncs all of my devices. When I am in court and get a continuance, I immediately enter it on my iPhone's calendar. When I get home it's already on my iMac and MacBook Pro. I love this feature.

I don't have a secretary or an assistant. My iPhone helps keep me organized.

When the iPad was released earlier this year, I held out. Why? It was a first generation Apple product, first of all. History has shown that they can have problems. But most importantly, I couldn't see a need for it. It seemed to serve no purpose in my world.

Since then I have paid loose attention to blogs about iPads. And I have watched more and more iPad apps be produced. My practice is not a typical law practice per se. But I did keep an eye on how other lawyers were using them.

Finally I bought a used one. I combed through the local Craigslist until I found one priced reasonably. I saved $100 by buying it used and it was in brand new condition. Before buying it, I already knew which apps I was going to use with it. But I have found others since.

I use the program/application Things as my task manager (my To-Do list). I have it on all of my Apple devices were it wirelessly syncs upon opening. This application, more than any other, keeps me on track. With up to 30 open cases at any one time, I need something to help manage my work output. Things does so brilliantly.

So, what am I going to use the iPad for? Simple, document viewing. On complex cases, I scan all the discovery documents along with grand jury and preliminary hearing transcripts and save them as PDF files. I keep them on my iMac's hard drive and back them up on my Time Capsule. I was already doing this before I had the iPad.

But now, I sync the files with my iPad where I can view them with the app, Goodreader, instantly on a screen that's just the right size. I also have apps that let me view and edit MS Office documents, such as Word. I doubt, however, that I will ever do much document editing on my iPad. It seems it's primary function will be that of a document viewer.

I plan to use it during my next trial. I will keep cross-examination outlines and other trial documents on it. I can keep an entire set of Illinois Pattern Jury Instructions on it as well. I also already have a bunch of case law ready to go.

I am going out of town this weekend for the holiday. But I am taking several hundred pages of discovery with me on 2 murder cases. And instead of hauling around 2 very large files, I will be carrying this little, light-weight iPad with me. And with the app iAnnotate PDF, I can make notes on the pages and drop bookmarks where needed.

You can say or think what you want, but I think it's smart.

www.schantz-law.com

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Why I Became a Lawyer

2010-07-02T09:47:00.000-05:00

I didn't begin my undergraduate studies until I was 25. In the years beforehand, I knew a lot of college graduates with degrees in history, sociology, and psychology (among others) that could not get good jobs. I told myself that if I ever went to college, I wouldn't settle for anything but a professional or advanced degree.

My initial aspirations were to become a heart surgeon. Something about that job appealed to me. When I finally entered community college I took lot of science classes: biology, chemistry, physics, etc.

After a year I transferred to a 4 year university and majored in microbiology. I also got hired to work in a biochemistry lab. When I first started, I was doing grunt work like dishes and preparing growth cultures. Soon, however, I was doing research under the guidance of a graduate student and then on my own.

Looking back at what I knew and what I was studying, I can say I was damn near smart. I was also constantly around brilliant people and that never hurts. I can read things I wrote 10 years ago and not understand the content or how I learned and knew it. It's very scary.

Ultimately, I turned away from medicine. The road seemed too long. 4 years of medical school. 5 years of intern/residency. 2-3 year fellowship. That is a long haul and I seriously doubted my stamina.

Somewhere in the back of my mind, I always felt law school was a possibility. I don't really know why, however. I didn't know any lawyers. There were none in my family (nor any college graduates). I was never hooked on courtroom TV dramas or movies (save for limited viewing of Perry Mason).

But I knew that lawyers needed to know how to write and speak. I felt I was ok in those departments. In hindsight, my impression was naive. But I had no way to know what a real lawyer did. And not only that, but I had no idea there were so many areas of law.

I probably based all of my ideas of what a lawyer was and did from watching Perry Mason. Yes, I am serious. While it's true that TV series is much older than myself, my grandfather used to watch it at night. Whenever I spent the night, I watched it too.

Subconsciously, I must have noted that many U.S. Presidents and Congressman were lawyers. Abraham Lincoln is my hometown hero. He was a lawyer. Must be a pretty noble gig.

I wish I could say there was some attorney I met that inspired me, but I cannot. In fact, before I went to law school, I can't think of one lawyer that I knew on a personal level.

When I entered law school, like most 1L's, I envisioned changing the world with my law degree. But I quickly learned that I had no idea what I had gotten myself into. I got my first law clerk job the summer after my 1L year. And from then on, I worked while I was in law school for a few different attorneys.

Only 1 of the 4 attorneys I clerked for did any criminal and it was mostly DUI. None of them went to court on any regular basis. If anything, working during law school exposed me to what some attorneys do. Sadly, it wasn't anything that really interested me. It looked extremely boring, in fact.

But by the time I graduated and was licensed, I wanted any attorney job I could find. I knew fellow classmates that were still unemployed over 6 months after passing the bar exam. That was scary. I jumped at the first job offer I received.

I worked as an associate for 2 firms. I jockeyed a desk and billed hours. I never went to real court, but I did get to draft appellate briefs and even argued one. I learned how to manage a file, write letters (I mean dictate them), review medical records, take depositions, and other civil type duties.

In the past I have written about how I ended up doing criminal defense, so I won't repeat the story. But if you haven't read it, let's just say it happened by complete accident.

My initial push towards being a heart surgeon was based on a desire to help people who need it badly. But if I am being honest, there is some hero factor at play too. Heart surgeons, like other doctors, are respected and looked up to. I imagine some are even admired.

Imagine being near death. A very skilled person takes you under his care. You come away in much better shape with years more to live. That's pretty cool. Are you ever going to forget your surgeon? Hell, no.

Someone in law school who obviously knew me better than I know myself, said I would wear a cape if I could. I didn't understand it then, but it makes me chuckle now. Am I a wanna-be hero?

If wanting to help people that need it and feeling awesome about it when it goes well makes me a wanna-be Marvel Comics character, then so be it. I am ok with that. But sadly, things don't always go well in this business.

I see so much human misery, suffering, fear, regret, confusion, frustration, and desperation. And that's just from the family of my clients. Each case I am hired on is an invitation into the lives of a number of people who are looking at me to, in some cases, be a savior.

That is a very heavy load. And when the outcome is good, it's an amazing feeling. The happy, teary-eyed hugs are the best. But when the outcome is bad, the feeling is terrible. The sad, teary-eyed hugs are the worst.

When something goes right, I think to myself, "yes, this is what I am supposed to be doing." But on the bad days I think, "what the hell am I doing?" This is a very up and down business. There seems to be very little middle ground. My skin grows thicker by the day. But my heart and feelings are still alive. They take a beating regularly.

Why did I become a lawyer? I honestly can't answer that question. There is no answer. It just happened. The career picked me more than I picked it. One one hand this all seems like a huge accident. But on the other, it seems that everything I experienced in life prepared me for the work.

If you really have any clue about my day to day life, that last sentence might be disturbing. I share a lot of my daily experiences here, but no where near everything. What I write may provide some insight, but it's not the same as being here, doing it. I have read a lot of books about WWII and Vietnam, but I wasn't there.

The sounds, the smells, and the scenes cannot be conveyed by words. Or at least not by mine. It's probably better this way.

Someday I may want to forget it all, much like the Claisen condensation.

www.schantz-law.com

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Compliments

2010-06-29T19:26:00.000-05:00

Late last year I was hired to represent a man on a drug case. He was arrested while sitting in a legally parked car. I filed a motion to quash arrest and suppress evidence. I conducted a hearing on that motion. I thought it was a really good motion, but the judge felt otherwise and denied it.

On the next court date I met with the judge and the prosecutor to discuss a possible plea. The client asked me to do so. This man had a pretty extensive criminal background. I plead his case as best as possible to the judge, but the sentence offer was pretty stiff in my opinion.

I relayed the judge's offer to the client. He asked for a continuance to think it over. This case had some merit at trial for reasons I won't discuss. He decided to take the matter to trial. On the next court date, however, I was replaced by another attorney. To put it another way, I was fired. This doesn't happen often, but it does.

The attorney replacing me is someone I am pretty friendly with. He was one of the first attorneys I spoke to at length back when I was first starting out early last year. I like him. He's an ex-prosecutor and a pretty nice person. We always chat when we see each other.

He took over the case for me in early February. Since then I have asked him how it was going. Rolling his eyes is how he always responds.

This morning I ran into him again. He said something like this: "You did an awesome job in that motion hearing. If I take the case to trial, I am just going to use your transcript and ask the exact same questions."

I asked if he was jerking me around. No, he was being honest. And apparently, the prosecutor on that case has also remarked at how well I did, including during the 402 conference where we discussed a possible sentence with the judge.

It seems no one could figure out why I was fired. But based on how things have progressed since I was replaced, I am quite happy I was let go. Some headaches are just not worth it.

This little 5 minute conversation made my month. It's not often we get an "atta boy" in this business, especially from another attorney. Just yesterday morning I declared that I wanted something good to happen...to someone...anyone. I needed a pick-me-up.

I guess Mick Jagger was right, sometimes we get what we need.

www.schantz-law.com

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Chicago's Handgun Ban

2010-06-28T17:10:00.000-05:00

Today the U.S. Supreme Court held the city of Chicago's handgun ban is unlawful. I haven't read the 200 + page decision nor will I. It seems no one is surprised by the court's decision. But I need to remind you, it wasn't a unanimous decision. In fact it was 5-4 split. So while most thought this was a no-brainer, 4 sitting Supreme Court justices thought otherwise.

This was a very legally complicated case, but a similar case was decided recently. In Heller, a petitioner challenged the Washington D.C. handgun ban. Remember, Washington D.C. isn't a state, thus Federal Law rules supreme in D.C.

The Heller court held that the D.C. handgun ban violated the Federal 2nd Amendment and was unlawful. Most people think, and incorrectly so, that the Amendments in the U.S. Constitution's Bill of Rights have always applied to every American at all times. I know I used to. But this is false.

It wasn't until the 14th Amendment was passed that most of the bill of rights were made available to the states. Prior to McDonald v. City of Chicago, it wasn't known whether the 2nd Amendment was applicable to the States. Or to put it another way, whether the 2nd Amendment could be held against the states.

The Supreme Court's majority thinks it is and, therefore, the local handgun ban is unlawful, just as the Washington D.C. version was.

I predicted, and incorrectly, that the Supreme Court would uphold the ban by ruling the Federal 2nd Amendment couldn't be held against the states. I thought they would punt the issue and cite the long history of Federalism. What I mean is that I thought the court would rule that this is a state issue and the Federal 2nd Amendment didn't apply.

Clearly the states can create and enforce their own gun laws. In some states, concealed carry permits can be obtained. Illinois is not one of them. In some states, hunting with rifles is allowed. Illinois is also not one of them. And I know laws differ across the country with respect to assault rifles and other quasi-military weapons.

So the state have some say, but apparently not the ultimate say, at least in terms of banning one type of weapon in favor of another.

As I wrote, I have not read the decision, so I cannot offer comment on how the court reached its decision. I chose to write about it because I consider this whole issue to be an entire waste of time, energy, and money.

The handgun ban was put into effect in the early 1980's. It makes it illegal to own a handgun within the city boundaries. In other words, it could be legally purchased but not legally owned.

In Illinois, a Firearms Owner's Identification Card (FOID) has to be obtained before a resident can legally purchase a firearm of any kind or ammunition. FOID cards are issued by the State Police after a criminal background check.

Thus, a Chicago resident with a valid FOID card could buy a pistol but couldn't register it with the city of Chicago. Does this make any sense? It doesn't to me. Violation of this city ordinance is only a misdemeanor. Most people don't know this. And it's almost never enforced. Most people don't know this either.

Here is why the ordinance is almost never enforced: most people caught with a handgun are either convicted felons or they get caught with the pistol outside of the home. In either case, it's a state felony.

The handgun ban didn't criminalize possessing a handgun outside of the home. In most scenarios that was already illegal under state law. The state laws about how weapons must be transported are very strict. The city handgun ban had no effect on the state laws.

Did the handgun ban somehow thwart the efforts of criminals to arm themselves? Absolutely not. Since most criminals could likely not obtain a FOID card, they could never legally own or possess a firearm based on state law alone.

And again, for a would-be bad guy with no criminal background who legally purchased a pistol, possessing the weapon outside of the home would almost always be illegal. Thus, the handgun ban was meaningless in terms of curtailing street crime.

But the city handgun ban was a polarizing issue and largely misunderstood. Our local Chicago Tribune has a Breaking News section on its website. Readers can post comments about the stories. I read almost every story of violence reported, but more importantly I read many of the reader comments.

With so many shooting and murder stories making it online, the handgun ban always seems to get mentioned. And that but for the ban, lawful folks could gets guns to protect themselves against the city's street thugs. But as I have already discussed, a gun still cannot be carried outside the home under Illinois law.

Some, however, get this and instead write that we should have concealed carry permits in Illinois like they do in Texas and Oklahoma for example. Perhaps. I might have a different opinion on this idea if I lived in a neighborhood where I felt carrying a gun in my pants would make me feel safer.

But as I have written, if it gets that bad where I live, I am moving far from here. I don't think having to carry a gun for protection is much of a way to live. But I do understand that for many, they have no choice. They are stuck where they live. They are surrounded by lawless thugs who show now care for human life.

And in two instances recently, a person in such a predicament shot and killed two would-be robbers/burglars who had broken into their home. Neither man was charged with violating the handgun ordinance. And the support for both couldn't have been stronger by the online news crowd. In fact, many wrote that it was about time the residents of Chicago fought back.

Although any rhetoric I may have offered wouldn't have been as strong, I had no problem with what happened. You break into someone's private home, there is a chance you might be killed. I am cool with that. This is yet another reason I felt the handgun ordinance was simply ignorant.

Now that the handgun ban is about to be tossed out the window what's going to happen? Maybe some will seek a FOID card just to keep a pistol in the home for protection. I think more FOID card holders will purchase handguns and keep them in their homes. Maybe some will sleep better. I think a number of people who already had them anyway will register them. But I think the large majority of current pistol owners will do nothing.

But will the ban's lifting have any effect on street crime? I seriously doubt it. And that's why this has all seemed like such a waste. It really didn't matter. The purpose of the handgun ban could only have been to make Chicago appear as if it was tough on crime by implementing strict gun laws.

However, the handgun ban completely missed the mark if that was its purpose. Remember, it was during the handgun ban era that Chicago lead the nation in murders. But if I made myself clear in this writing, that shouldn't shock you since the ban was indeed meaningless on the streets.

In summary, it's still illegal to possess a gun on your person or to keep one in your car that's loaded, uncased, and immediately accessible. In other words, not one thing changed today for Chicago's streets. But, if you have a valid FOID card, soon you may keep a handgun in your home if you so choose.

Or at least you can do so now legally.

www.schantz-law.com

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E-Personas and Blogs

2010-06-26T10:20:00.000-05:00

The internet allows almost everyone who plays to have a voice. Some folks have more than one voice. Back before message boards and blogs, I knew people who wrote things in emails they would never say in person.

Some people have "E-Personas". What I mean is that some people's personality on the internet is much different than who that person really is. I suppose it's possible that the internet version is the true person and the day-to-day variety is reserved, repressed, or simply scared to show true colors.

I can't imagine how frustrating that has to be. This if life, however. Sometimes keeping ones mouth shut is necessary for survival, especially in the corporate world. Imagine you had a very nice high paying job for Corporation A, but in secret, despised its business practices. The internet would allow you to carefully express your frustrations if you chose to. You could join a message board, a listserv, or perhaps start a blog.

Since I began using email in the early 1990's, I have been consistent. I am always me. Over the years, I have participated in various message boards that discussed topics ranging from Gibson Les Paul guitars to Distance Running to Tube Amplifier Repair. I have met people from various boards and I am always told I am just like my online self.

I have also done online dating, which is a little scarier. But I also used a recent picture and wrote things about myself I felt were accurate. I wish I could say that was true for everyone, but sadly, it's not.

The Internet is by far the biggest technological advance I have seen in my lifetime. I have been online since 2400 baud modems, UNIX servers, and Cello. The World Wide Web was almost non-existent. Almost no commercial businesses had a web presence. It was mostly universities.

I predicted the WWW would be a game changer but it's gone beyond my wildest dreams. My life these days is interwoven with it, but I could still survive without it. I think. But, I wouldn't want to. The Internet has made my life simpler.

But I fear the digital age is having a negative impact on the young. Social skills seem to be disappearing since communication, for the most part, is no longer done in person. Or even on the phone.

I text regularly with the person I have the closest relationship with. However, we can still talk in person.

The blogosphere is a strange place. Anyone can write about anything. And anyone writing can be anyone they want to be. A lot of people that blog or comment on blogs are fake. You could start an anonymous blog claiming to be a professional musician, write about associated topics, but in reality be a beginner on your instrument.

And people could anonymously comment on your blog, also claiming to be a professional, but not even play an instrument. I amazed at how convincing people can write while knowing very little. But I am even more amazed at how easily so many people are fooled into believing what fakers write.

For this reason, the Internet can be very dangerous. I can't walk into the Chicago Tribune, hand them a story, and see it on tomorrow's front page. But I can write a blog post, hit the publish button, and it's there for anyone to read. And it can be completely false, incorrect, misleading, propaganda, rumors, gossip, plagiarized, or any number of other adjectives.

The Internet is quite the gathering place for misinformation. But some people write simply to piss others off. They offer snarky comments and add nothing to a discussion. And most do this behind a veil of anonymity.

There are also the blog authors that become unhinged when someone gently disagrees with them. If you can't handle someone disagreeing with you, why publish where anyone can read what you have written?

The legal blogosphere is no exception. Some authors write with a pretentious tone. They belittle younger, inexperienced attorneys and criticize colleagues, sometimes harshly, for almost anything. At times, it's downright childish. I have always found Internet flame wars lame. And a waste of time.

I don't personally know any other lawyers that blog. But I don't read many legal blogs, and comment on even fewer. The blogs I do read are authored by attorneys that I feel are real people and not some hot shot, holier-than-thou, lawyer that spends more time blogging than in court.

The pissing contests that I have seen on some blogs by disagreeing attorneys has at times been humorous. But too often, it's been enough to make me stop reading that blog. Completely.

One of the reasons I typically don't like lawyers is that so many of them don't listen and only want to be heard. Last I checked, we have 1 mouth and 2 ears.

I fear that many attorneys, who might have some interesting things to write about, have been dissuaded by the trolls that simply like to argue, but offer nothing to the discussion. On some level, I must have feared the same thing since I tend to write for non-lawyers.

When I started this blog, it was designed to give me a place to vent. Criminal defense work is very frustrating and I found a certain cathartic value by opening up and writing about my day to day headaches. But I never set out to educate other attorneys, or anyone for that matter. I don't know enough to teach.

I think some people find what I do for a living interesting. It's for them I write. If attorneys from other jurisdictions read my posts and make comparisons, that's great. I have no idea how many regular readers I have. I know only 2 people are registered followers. Yep, that's right, just 2.

But based on the anonymous comments here and there, I am sure there are more than just 2 that read my posts. And for those of you that do read, thank you. You might be happy to know I am the same in person as I am online. Well, actually in person I am pretty quiet, unless it's appropriate for me to talk, i.e. in court, for instance.

Some attorneys take blogging quite seriously. Nothing wrong with that. I am sure some people take blogs about gardening very serious as well. But, I think some people need to really lighten up.

If your blog or E-persona, is the sole means you have to generate attention to yourself, you probably have bigger problems than comments on your blog's content or flaming people on Twitter.

And it's hard to believe that some of you are as acerbic in person.

www.schantz-law.com

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