Where's His Lawyer?

I recently litigated a motion that I ultimately lost. It was a motion to suppress a confession, both oral and written. Nationwide, these motions are rarely granted. In order to sustain such a motion, typically some serious police misconduct has to be proven.

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.

www.schantz-law.com

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Justice Served, Finally

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

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....

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?

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 as hitting of the golfball. Sometime in the early afternoon he grabbed his clubs and headed to the parking lot. He changed out of his golf shoes and headed home.

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

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.

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Spousal Consent To Search

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.

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