Friday, January 29, 2010

18 and Life

Due to a couple of recent phone calls and stories in the local media, I was forced to pause and ask myself a question: how would it feel to be 18 (or younger) and looking at spending all of your adult life in prison? How do you get there? Catch a murder case. That's how.

I don't know what that feels like. And I am thankful. When I was 18, I was in the U.S. Army infantry. Regularly I was armed with an M-16 and knew how to use it, quite well in fact. I was a trained killer. I knew how to disassemble, maintain, and operate half a dozen deadly firearms. And for a kid that had never fired a weapon prior to enlistment, I was a good shot. Trained well. I could also throw hand grenades and use anti-tank weapons. And I also knew how to set up a Claymore mine....front towards enemy (will never forget that).

Let's see what else? Oh bayonets. Those kill too. Violently. Knew how to fix one on the end of my weapon and charge at the bad guys like in a John Wayne movie. I never heard the command "fix bayonets" in a real situation and I am damn glad.

In truth, one doesn't even have to put a bayonet on the end of a rifle to kill with it. It's easy enough to pull it right out of the sheath and slit a neck, quickly and quietly. Or you can place it gently at the lower part of the back of the skull and thrust it swiftly upwards. Either method works. I was told by some old Vietnam veterans bayonets are great for cutting off ears too.

Some days I really miss the military. But mostly, I don't. I took just enough of those years to help me the rest of my life while leaving the instinct and urge to kill behind. Killing in the military is generally acceptable as long as the victims are enemy soldiers. Being a murderer in the street brings problems. And lots of them.

I wonder if these kids ever stop to think that they might go to prison for a few decades if they shoot a gun at someone? By analysis, you can back up to the point where that bad decision was born. Once that gun is picked up, the chances of going to prison or the grave increase with every subsequent act. How?

Pick up the gun. Load it. Put it in your pants. Take it outside. Ride around in a car. Be in a gang. Be in the drug business. Pull out the gun. Chamber a round. Point it. Fire it. Do you see what happened? With every step, the probability of something bad happening increased until the point that the outcome became not only predictable, but likely.

You can pull out the gang and drug bits and still have problems by just possessing that weapon. Not everyone shot in Chicago is a result of drugs or gangs.

When I think of everything I have done since I was 18 it's impossible to imagine my life any other way. Remove it all and there's just a blank canvas. And around here, playing around with guns at such a young age might just get you a nice blank canvas, well except for the horrors of prison.

As bad as my life has been at times, it wasn't prison. Sitting here now, really thinking about this, it's clear I have had a great life. At 38, I am the product of my life since 17 (age of enlistment). A lot of me extends back into childhood, but I am the person I am mostly from being shaped by my adult experiences.

I wonder, though, had I been presented with more bad options as a pup, would I have turned out as I have? Or would I be in prison without most everything I know and feel? I was dumb at 17. But how dumb? Dumb enough to carry a gun? In the right....errr wrong neighborhood, maybe.

However, I was fortunate enough to go to a high school that didn't have metal detectors and shootings after basketball games. I can think of only one gun ever showing up in my high school and it was a huge deal. No one could figure out why the kid even brought it to school. Why? It was stupidity and nothing more.

He wasn't out to shoot or kill anyone. No one was threatening to shoot or kill him. He found a gun somewhere (probably belonged to his father), thought it was cool, and took it to school. But not for show and tell. It was left in his locker and someone snitched. Stupid.

But even in the relatively crime-less high school I went to, a young man made a bad decision and picked up a gun without thinking it through. Did he pause to think that pistol might accidentally fire and cause someone injury? I doubt it. He didn't even think he might get caught with it and expelled from school in disgrace, let alone potentially killing someone. He didn't think. He wasn't a young man. He was a boy.

And these boys on our streets are picking up guns everyday without thinking it through. This has to stop. It does. The kid at my high school probably never imagined actually using that gun. He probably didn't even know how to disengage the safety. Sadly, I think someone who picks up a pistol around here knows that sooner or later it will get used. The only question is when.


Rest in peace; or rest in prison.


Thursday, January 28, 2010

Confession After Illegal Arrest, Ok

A recent Illinois Appellate Court opinion addressed whether a confession that followed an illegal arrest was admissible against the defendant.

The defendant in People v. Salgado was found guilty of first degree murder after a bench trial and sentenced to 55 years in prison. The case was first appealed on the issue of whether or not the defendant's incriminating statements should have been suppressed. The Appellate Court vacated the conviction and sentences.  The case was remanded (sent back) to the trial court for an attenuation hearing. On remand the trial court held the incriminating statements were admissible. The judgment (finding of guilty) and sentence were reinstated. The second appeal followed. [Note: the first appellate decision was not published, pursuant to Illinois Supreme Court Rule 23.]

The defendant was charged with the murder of a fellow gang member. On January 28, 2000, the victim, defendant, and a 3rd gang member (Navarro) were driving around. The defendant asked Navarro to pull into an alley. Defendant got out of the car and shot the victim several times. Defendant told Navarro to keep his mouth shut and they left.

The investigating detective quickly learned the victim was last seen with the defendant and Navarro on the night of his murder. On February 3, 2000 the detective went to Navarro's home. Though not under arrest, Navarro went to the police station. On February 4, 2000 (about 5 hours later) he told the detective he saw the defendant commit the murder.

On February 3, 2000 defendant was also brought to the police station. He denied involvement in the murder. Despite his denial he was kept in the interview room. His attorney (probably from FDLA) arrived on the morning of February 4, 2000. He advised defendant of the first degree murder charge based on Navarro's statement. The attorney told police defendant was not to be questioned, left his business card, and walked out.

But on February 5, 2000, the defendant suddenly told the detective he wanted to talk.  He was advised that he had a lawyer and didn't have to speak with any police. Defendant, however, confessed to 2 detectives. He also showed police where he threw the murder weapon. That night defendant signed a waiver of attorney and gave a video taped confession. As a side note, all murder interrogations and confessions in Illinois have to be video recorded by law.

Sounds like an open and shut case, right? Not so fast. Apparently after defendant denied involvement in the murder he was detained illegally, until Navarro implicated him as the shooter that is.

Confessions that follow illegal arrests are per se inadmissible against the defendant. But they can be admissible if the statements are sufficiently attenuated from the illegal arrest. What this means is that if too much time has elapsed between the illegal arrest and the confession, the confession might not be admissible. But other factors than just time are considered in answering whether or not attenuation has occurred.

The factors are: were Miranda warnings given, time between arrest and confession, whether there was an intervening circumstance, and the flagrancy of police conduct. 

Defendant was at the police station for about 36 hours before he confessed and 47 hours before he gave the video taped statement.

The legal analysis is very thorough and dense. In the first appeal, the court held defendant was being illegally detained starting at midnight on February 4, 2000, after he denied involvement. On second appeal, the court, however, concluded that probable cause to arrest defendant was established at 2:00 am on February 4, 2000 when Navarro told detectives defendant was the shooter. Thus, according to the court's analysis, defendant was only illegally detained for 2 hours.

The court discussed that Navarro was never a real suspect but rather was a witness that could have left the police station at any time. Thus, Navarro, himself, was never seized or arrested but was just a cooperative citizen. Had Navarro's statement inculpating defendant been illegally obtained, defendant's confession would likely have been suppressed.

The Appellate Court ultimately upheld the trial court's guilty verdict and sentence.

I want to comment a little about this case. The first thing I find confusing is the mention of an illegal arrest. Why was it illegal? Ok, I think it was probably illegal but why did the Court acknowledge it was so? Why is the Court inline with my thinking?

I am sure CPD had an investigative alert out for BOTH defendant and Navarro. On the streert an investigative alert has the effect of an arrest warrant. These alerts are initiated by a detective and entered into the CPD's computer.

If someone with an investigative alert is found by police, they are arrested and taken in for questioning. Apparently that's legal. I have a problem with it on 4th amendment grounds, but it's normal around here. The CPD has tactical teams that just go around and arrest people with active investigative alerts. And often these arrests occur in the defendant's home where by law a felony arrest warrant is required. Again, a bit constitutionally flagrant, but it's normal here in Chicago.

Once in police custody, the cops have 48 hours to either release the person or bring him (or her) before a judge after felony charges are approved. The 48 hour bit is where Gerstein is implicated.

[I have yet to hear a Gerstein hearing as I think the U.S. Supreme Court envisioned, but in Illinois bond hearings pass themselves off as Gerstein hearings. Someday it might get addressed. I ranted about this issue in an NPR interview last year. It didn't help.]

How it works in the real world is quite different from the Appellate Court's understanding. The person under arrest is usually handcuffed to a wall for a little while in a very small room with no windows. After waiting for hours, and usually overnight, a detective finally comes in. Usually by this time, the suspect has been given a can of soda and maybe a candy bar. If the suspect tells the detective what's wanted (confession), McDonalds will likely be brought in. That's fair. A confession for a Big Mac and fries.

In this case, I am sure Navarro was led to believe he was going to be charged with the murder. Remember, the police can lie during interrogations and often do. It's called trickery and I dislike it. Very much.

The Appellate Court's determination that Navarro was simply a good citizen and was at the police station of his own free will is naive. That's not how it happened. He was told he was going to the police station and probably put in handcuffs (although the record states he was not). The case reads that Navarro testified he asked for an attorney. The detective testified he did not.

Navarro was probably told he wasn't going to see his family again because people on the street were saying he killed the victim. Is that coercion? I don't know but it worked because he gave up the real shooter within 5 hours.

The detectives are trained in the art of criminal interrogation. And they are all taught the Reid method. I have seen video of murder interrogations where the detectives try to talk the suspect into admitting guilt by various benign suggestions and irrelevant examples. False confessions exist. They do. The psychology behind them is fascinating.

Apparently, however, the Reid method works, because a lot of people confess after they have sat long enough. In this case, it took 36 hours to break Mr. Salgado.

Question: once someone in custody via an investigative alert denies involvement in the crime being investigated, are they being illegally detained? Apparently not as long as someone gives police probable cause. But in the initial appeal, the Appellate Court held defendant's arrest was illegal for lack of probable cause (that is why it was remanded to the trial court with the verdict and sentence vacated).

It wasn't until the second appeal that it was determined the illegal detention only lasted 2 hours. According to the court, 2 hours wasn't so bad. The defendant's 4th amendment rights were only mildly violated, I guess. But if 2 hours isn't enough, how many is? 5? 10? 40? At what point does one get a working 4th amendment? How or when is the right triggered?

The logical extension is that all arrests by investigative alert that lack probable cause are illegal. I wrote something about this very topic early last year and declared they were illegal. I later learned that every investigative alert notes whether or not probable cause to arrest exists. But on the street does it matter? I don't think so. If found, you're going in, probable cause or not. Make the arrest. Close the case. The lawyers can sort it out later.

The legality of CPD investigative alerts has never been closely judicially scrutinized. And even in this case the words "investigative alert" never appear. But I know that's how both Navarro and the defendant ended up at the police station.

I have had mothers call me who said a detective called looking for their son. The detective said they just needed to talk to him to clear his name about some crime. Oddly the crime which they list is never the real one being investigated. Hmmm, trickery on a mother. Nice.

The mother tells the son about the call. The son denies knowing anything about the crime and goes to talk to the detectives. After all, he has nothing to hide. But very few suspects ever walk out of the police station after speaking to detectives. In fact, the detectives usually have enough of a case to pass felony review already. Whether they got the right guy is not as important as clearing and closing the case. I think everyone is lead to believe they will go home if they say the right thing. The truth, however, is anything they say usually makes things worse.

Some might say this was all simply good police work. The detective learned who the victim was last seen with. Both were pulled in for questioning. One fingered the other and the shooter confessed. I guess justice was served. The system worked. The bad guy is in prison.

However, I think the Appellate Court bent its analysis around the case to uphold the conviction. Their discussion, or lack thereof, of the mechanics of the police work involved troubled me. The court had the opportunity to analyze the legality of investigative alerts and punted.

At the very least the court could have addressed whether someone who is detained through an investigative alert is under arrest for 4th amendment purposes. Clearly Mr. Salgado was, but when? Thanks to the court we know when his arrest became illegal. But was he under a lawful arrest before it was illegal? I don't know. And I wish I did.

The black letter law is that once you're no longer free to leave, you're under arrest. But, there is also the totality of circumstances analysis. And if a reasonable person would believe they were not free to leave, the 4th amendment is probably implicated.

I doubt anyone in a CPD interview room feels free to leave at any time, especially when detectives are questioning them. Or if they are handcuffed to the wall. Or the door is locked. Everything else is academic.

A neutral judge or magistrate has to issue a felony arrest warrant, much like a search warrant. I think often investigative alerts side-step judicial review and give arrest warrant power to the police, who are not supposed to have it.

I have a feeling this case is going to be looked at again on higher appeal. Someday the Illinois Supreme Court is going to address this issue. I hope I live to see that day.


Tuesday, January 26, 2010

Cash for Guns

It has always bothered me when pundits and commentators criticize but offer no solutions. I can think of one ultra-conservative commentator that has made his living doing this for a long time. If more people were trying to solve problems and less trying to divide us, it might be a better place.

I have written about the problem of guns in the city streets. Although this problem appears to be greatest in Chicago, no Illinois city is immune. Illegal guns breed violence. They are a problem. Gun laws seem to be ineffective and the prisons are overcrowded. But I have a solution: pay to get the guns off the street.

It costs about $25,000 per year to house one prison inmate in Illinois. I don't know how many real years someone sent down for gun actually does. But let's assume it's just one year. $25,000 to keep the person in prison for one year. Add the cost of prosecution to include the arresting police department, paperwork, court appearances, prosecutors, time in the county jail, etc. The cost is probably close to $30,000.

What does the city, county, and state get for $30,000? They probably got a gun off the street and the bad guy goes to prison where he probably learns how to be a better criminal. It appears that getting the gun off the street is the only real value. But $30,000 a gun is a lot.

How about we offer to pay people to bring guns in? No questions asked. Bring in a handgun and walk out with $1,000 cash. A sawed-off shotgun gets $2,000 and a machine gun pays $5,000.

Doesn't this seem to be much sounder fiscally? I am only half joking.

I guarantee this would get more handguns off the street than the cops do making arrests. I think the numbers would be staggering. It would be worse than cash for clunkers. Less guns might mean less shootings. Less shootings could mean less murders. Less murders is a good thing.

Who pays the medical bills for those shot that don't have medical insurance? We do. Insurance rates are raised to cover the uninsured. If someone gets shot up really good and needs surgery, the medical costs along could reach $100,000. Someone is paying at least some of that and it's not the person that was shot. And I have yet to see one convicted shooter ordered to pay restitution for the medical bills of the victim.

If our country can spend its way out of a recession, surely we can spend our way out of a crime problem. More cops and more prisons are not the answer. It's been tried. It hasn't worked. We need a new plan.


Monday, January 25, 2010

Armed Violence

There is a rarely used crime in the Illinois Criminal Code called Armed Violence, 720 ILCS 5/33A-2. The elements of the crime are simple: being armed with a dangerous weapon while committing a felony. This is sort of like felony murder.

This law takes two separate felonies and criminalizes them sharply if committed together. Being armed with a deadly weapon is usually illegal. Add most any other felony and you have armed violence. But instead of 2+2 equaling 4, it adds up to 10.   

Being armed is pretty easy to understand. The statute breaks weapons down into 3 classes. Class I weapons are handguns, saw-offed shotguns, machine guns, and any other firearm small enough to be concealed. Class II weapons are regular shot guns, rifles, tasers, other firearms (?), knives with blades that exceed 3 inches, axes, and hatchets. Class III weapons are blackjacks, brass knuckles, and other bludgeons.

Not sure where hand grenades fit in. How about Claymore mines? Anti-aircraft missiles? Anthrax? Poison Ivy? Bad breath? I am not meaning to make fun of this law because it has a lot of teeth and they are razor sharp.

The underlying felony, or the crime being committed while armed can be confusing. Murder, attempt murder, manslaughter, aggravated battery of a child, and home invasion are among crimes that cannot be used as the underlying felony (or that which one is doing while armed). Weapons crimes where possession or use of that weapon is a separate charge cannot be used either. In other words, you can't be charged with aggravated battery with a firearm and armed violence.

The law is further broken down into 3 categories based on the offense itself. Being simply armed is the least serious, discharging a class I or II weapon is in the middle, and actually causing great bodily harm with a class I or II weapon is the most serious. 

The purpose of the legislation was (I think) to address the threat of armed drug dealers. That's two layers of evil. Deal drugs=evil. Carry weapon=evil. Deal drugs while carrying a weapon=very evil.

People v. Lucas, 372 Ill.App.3d 279 (3rd Dist. 2007)  was upheld on appeal where the defendant was charged and convicted of armed violence. In Lucas the defendant was arrested for a DUI while carrying a switchblade.

DUI's are normally misdemeanors in Illinois. But in this case, the defendant's license was revoked and therefore a class 4 (least serious) felony. Drive Drunk=Evil. Carry a switchblade=slightly evil. Drive Drunk with a switchblade=????

What makes this law so nasty are the sentences it carries. In the above case, the defendant got 30 years. Count 'em. 30. There were some other facts to the case, but 30 years is pretty harsh.

Violations of the armed violence statute are sentenced like this:

Be in possession of a handgun while committing another felony: 10 years minimum, up to 30.
Shoot a handgun while committing another felony: 20 years minimum, up to 30.
Shoot and hit someone while committing another felony: 25 to 40 years.

As a comparison, the sentence for first degree murder is 20-60 years. Note: an extra 25 years can be added if a handgun was used to commit the murder.

Compare the armed violence sentences with those of regular felonies. Example: defendant arrested for a pistol and some drugs. Carrying a pistol on your person is normally a class 4 felony, or 1 to 3 years. Possession of 1 gram of cocaine is also a class 4 felony. If committed at the same time, normally the defendant would only plead guilty to one charge and probably the gun.

If the defendant in the above example case is convicted on both counts, the sentences would likely run concurrent or at the same time. In other words, the most the defendant would do is 3 years.

Charge this case under the armed violence statute and it's 10-30 years. Quite a difference. And it clearly meets the definition of armed violence.

I have a case that the state has brought armed violence charges against my client. A weapon was fired and it hit two people. This all happened inside of a home. I have a great self-defense and/or defense of property case. But some crack-cocaine was found in the home.

This split my case in two and raised the difficulty level immensely. A self-defense case, in theory, is easy. Put the defendant on and have him tell the jury what he was thinking when the incident happened. He was scared. He feared for his life. He lives in a violent neighborhood. He thought he was about to be killed. And so forth.

Assuming all of that comes in, a proper jury instruction is given and self-defense or defense of property is considered by the jury. And in my case, I have some great facts.

Add the armed violence charge and now I have to prevent the state from proving my client knew about the drugs or it's 25-40 years.


Monday, January 18, 2010

Withdrawing Guilty Plea: Not So Easy

In the last couple of months I have been called from several persons wanting to withdraw a recent plea of guilty. In Illinois, a motion to vacate a guilty plea must be filed within 30 days after the plea is entered.

Procedurally, a motion is filed and the case is put back on the trial court's calendar. The file has to be pulled by the clerk and sent back to the courtroom. But it's not automatic the judge will allow the plea to be withdrawn. A compelling reason for the withdrawal must be set forth in the motion. Changing one's mind is not proper grounds for withdrawing a guilty plea. With this in mind...

The story was the same for all. After sitting in the county jail for several months, a sentence of probation was offered in exchange for a plea of guilty. They all took it. It was the way home.

I was told the public defender did not explain the right to trial in a meaningful way and pushed the plea. During a plea hearing the judge advises the defendant of the right to trial. And here in Cook county, a jury waiver has to be signed before all guilty pleas are accepted in any case. I understand clearly what a judge says to someone entering a plea of guilty. But I am a lawyer and hear the speech frequently.

Sadly I don't think most people really know what's happening at a plea hearing entirely. I always tell my clients the same thing the judge does and ask if there are any questions. But to the unsophisticated, the process has to be intimidating. Most new defendants are scared of judges.

However, none of them thought about the ramifications of being a convicted felon. Once the realization set in, they wanted to talk to a lawyer. This is where I entered the picture.

Because they were all told at their plea hearing, the 30 day filing requirement was understood. I guess they got that part. But I had unpleasant news for them all. Here are the nuts and bolts of what I had to explain:

If the judge grants the motion to vacate the guilty plea several things happen: 1. All of the charges are reinstated, 2. The case is set for trial, and 3. Bond is reset.

Numbers 1 and 2 were not a problem. Number 3 was not expected. If the charges are reinstated bond has to be reset. You would expect the bond to be about where it was initially. Side note: bond is initially set by the sitting bond judge at bond court. This normally takes place the day after a felony arrest. The conditions of bond can always be reviewed later at the request of the defendant.

What this means is that once the guilty plea is withdrawn, the State is going to reset bond which usually means the defendant goes back to jail...where they were. If they were not able to make bail the first time, it's unlikely they will a second time. And once I make this clear, withdrawing their guilty plea sounds like a bad idea. In fact, not one pursued withdrawing their plea when I told them being locked back up was likely going to happen or was at least a possibility.

Keeping with the spirit of my recent ranting...

It is in my opinion the enormously high bonds here in Cook county yield more guilty pleas either directly or indirectly. If there is a force pushing innocent people to plead guilty than the system is broken.

I compare Cook county bond court with that in Kane county.

In Kane county the judge asks the defendant how much money the family could come up with and then sets bond at that amount. Amazing. I hear the federal system is like that as well. In other words, bond is not supposed to be set beyond the reasonable reach of the defendant.

Really heinous crimes are going to have high bonds in any county. The risk of flight is too great. But requiring $5,000 on a small drug case is a bit excessive. Money can buy justice. I am not implying the guilty can go free with enough cash (it worked for O.J. Simpson however). But if more people could bond out of jail and hire a lawyer, I predict the quick guilty plea would be rarer. Bonds and lawyers are not cheap and there is the rub.

It is very frustrating as an attorney to have a case that has a fighting chance, but a client that wants to go home and is willing to cop-out to get there. I understand though. I don't have to sit in the county jail while I am waiting on discovery and subpoenas. The time is always easier to do when it's someone else doing the time. To me one day consists of 24 hours but in jail I am sure a day is much, much longer.

I don't think our local system could withstand massive amounts of litigation. If every defendant or even a fraction of them that are currently in custody demanded trial, it would be ugly. The Assistant State's Attorneys can be difficult when they realize there will be no guilty plea early on. I think most of them are starting to realize any thorough attorney will file a suppression motion when possible. But appear like you're really headed to a jury trial and all of a sudden you're a maverick.

"This is Ghost Rider requesting a fly-by."

"Negative Ghost Rider, the pattern is full."

Maverick. Heh.


Saturday, January 16, 2010

Guns and Homicides

Having recently finished my first year doing criminal defense work in Chicago, I realize how violent this city can be. I knew we had a drug problem (although I didn't know how popular heroin remains) but I wasn't aware of how many people are armed with handguns. Most of the violent crimes are isolated in the southern and western neighborhoods where poverty is the highest.

Thinking back on 2009, most of my clients lived in these neighborhoods. South Austin, Englewood, and Gresham come to mind. There are websites that track Chicago crime. It appears there were 453 murders in Chicago in 2009. In 2008 the number was 509. In 1999 there were 705. The early to mid 2000's saw a decline with an upturn in 2007.

The Chicago police superintendent credits gang unit reorganization for the decline last year. And I am sure the mayor credits the police as well. I congratulate whomever deserves the credit. However, I am not convinced the lower murder rate is attributable to law enforcement.

Does law enforcement reduce or prevent murders? Do the police make the gang bangers have come to Jesus meetings in an effort to increase the peace? Do the little video cameras that watch and record some corners 24 hours a day discourage homicides? Well I bet at those corners they do. The drug dealers those cameras were designed to capture on film moved down the street. And the violence went with them.

The Chicago police do remove guns from the streets. A lot of guns. Of the 100 felony cases I accepted in 2009, about 30 involved handguns. Despite police efforts, however, there seems to be no shortage. The prices are still low and availability high. However, more gun arrests could mean those people inclined to carry guns are locked up. That could reduce killings. But then there are people like me that sometimes put the gun toting folks back on the streets soon after arrest. By doing my job could I indirectly increase the homicide rate?

I think most of the gun carriers pack heat for protection. The violence is bad. Join a gang and the chances of getting shot raise dramatically. Don't join a gang and you still might get shot. Be at the wrong place at the wrong time and bad things can happen. Unfortunately, wrong places and wrong times are not isolated and rare; they are in the neighborhood and constant.

While driving through some of the rougher areas I sometimes wonder if I will be shot. I really do. I have sat waiting for a red light to turn green and asked if today will be the day I get car-jacked and possibly killed. There were times last summer I stood on porches in Englewood waiting for a drive-by aimed at the gang member I was chatting with.

But I don't carry a gun, even though at times I feel that perhaps I should. The truth is, I don't like guns. I carried, fired, and cleaned enough weapons while in the Army to last me a lifetime. If I don't fire a gun for the rest of my life, it will be fine with me.

In comparison, my investigator, a retired Chicago police homicide detective, still carries a .38 clipped to the inside of his pants. By law, he is allowed. Old habits die hard. He said he doesn't feel safe in this city without it. I never asked if he was ever shot at in the line of duty. Such an event could change perspective I imagine.

I think about the weapons training I went through in the military. Before I ever fired an M-16 I knew a lot about it. I knew how it worked. I knew how to take it apart. I knew how to maintain it. And I knew how to operate it safely or how to shoot the bad guys only. Weapons safety is a top priority in the military. I am sure the police take it seriously too.

Now I think about the 15 year old that buys a .45 in an alley out of the trunk of a car. Is there any training that comes with that gun? Is there a firing range to learn how to use it properly. The answer is no. There are no owner's manuals. And who would read it?

I guess most learn to shoot and handle pistols by watching movies. Only they don't work the same way. Real guns fire real bullets. And real bullets kill real people. Real guns are also heavier than you would think.

As far as the Chicago homicide rate goes, I am not sure how many of 2009's 453 murders were gun related, but my guess is that it was most of them. Stabbing someone is an intimate act. You have to be close enough to hear their last breath. But shooting someone is almost arcade like. You can do it from a distance and not get anything on you. However, due to lack of training, many street gunmen are not great shots. I have seen crime scenes were the shooter emptied a 9 round clip at 4 people from 30 feet and only hit one leg. Marksmanship skills like that, or lack thereof, will keep homicides down.

In 2008, New York city, with a population of about 8 million, had 523 murders. Los Angeles, with a population of 3.7 million, had 384. And Chicago had 509 and a population of 2.6 million. NYC has over twice the population of Chicago and only 14 more bodies in 2008. How is that? Rudy Giuliani effect?

I thought Los Angeles was just crips and bloods shooting up everything. Over million more residents and 125 fewer murders than Chicago. How? Why?

Here are a couple of reasons why Chicago's murder rate might be so high. Too many guns and lack of an alternate dispute program. When I was a young boy, disputes in the street never went beyond a fist fight. And even that was pretty rare. My dad taught me how to box. How to throw a punch. How to feint an attack. How to bob and weave. But he never showed me how to shoot a gun. I grew up in a pretty bad neighborhood. My dad had a pistol. I saw it. I didn't know where he hid it and I damn sure never touched it.

Briefly in the 1980's a street dispute ended up with music, a broken down card board box, and people spinning on their backs. Break dancing was cool. I did it. No one got hurt and it was good exercise. It also did wonders for flexibility. Kind of like street yoga. 

Are kids these days too soft to take a proper ass whopping? Are shootings how things are handled these days? Am I going to shoot you because you talked trash after dunking on me in a basketball game? Am I going to shoot you because the bag of weed I bought off of you is a couple of grams light? Am I going to shoot you because you talked to my girl? As silly as this sounds, this is the reality out on the streets.

Another reason and a huge problem I see more often than not is the absence of a father in the house. I can only think of about 3 cases in 2009 where the defendant's father was involved in my hiring. During my childhood my father had a body like Rocky Balboa. He worked out 7 days a week lifting weights and running. And I was scared of him. I didn't get thrown around or abused as a child, but I did get spanked when I earned it.  I also went to a Catholic grade school and got whipped there too.

Probably around age 5 I figured out that upsetting dad was probably not a good thing because it brought pain. I was never scared of people in my neighborhood or the police. It was just knowing my dad wouldn't hesitate to whip my ass that kept me in line until I left home at 17. Yes, as a senior in high school I still wouldn't have crossed my father.

But with no father in the house, boys (and girls) are often raised by their mothers or grandmothers. Typically they are raised in the church and are taught right from wrong. But at some point they find their way to the streets and eventually the corners.

At a time when it's necessary to be attractive to young women, money becomes important. It takes money to buy Air Jordans. It takes money to buy a cell phone. It takes money to buy jewelry. It takes money to buy nice clothes. It takes money to pay for a date. And eventually it takes a lot of money for a car with nice rims and a loud stereo.

Sadly not many mothers and grandmothers have this kind of money to give. Working at McDonald's might take years and there's no time for that. This girl needs wooed now. Where can a 16 year old make some quick cash? Too often the answer is by slinging dope on a corner. But working a corner requires membership in that corner's local union or gang.

Now without even as much as insulting anyone, the new young gang member is a target for a senseless shooting. Standing on the wrong corner with the wrong people can be deadly.

Last March I had a 17 year old boy as a client that was caught with a gun. It was his first felony. I negotiated probation as a sentence. After sitting in the county jail for 6 weeks he went home. Two weeks later, while walking down the street, a 14 year old boy shot him in the back. He was dead before he hit the ground. Why? It was over a girl. And it happened on April 5, 2009. A day I will never forget.

I learned of this tragedy from the boy's mother. A day later she called again to give me details of the arrangements. I went to the wake a couple evenings later. Being the only white person there didn't make me uncomfortable but I stood out. I went to the casket. There he was in a nice white suit lying peacefully as if asleep.

I stood there not knowing what to think or how to feel. But suddenly a deep feeling of sadness fell over me. In some ways, it's a sadness that has never left. I think in Japanese it would be called yarusenai.

I was quietly introduced to some uncles, aunts, and cousins. All of them knew the boy was recently locked up. And they all knew his lawyer had gotten him out on probation.

I was thanked by many for what I did. Thanked? For what? I got him returned to the street where he was murdered before he was old enough to vote. Is that really worth thanks? That really spun me around.

This wake was very different from any I had previously attended. People were shooting video of the corpse and most of the young people took pictures of him with their cell phones. That spun me around in the other direction. 

In all prior wakes, there was an attempt to celebrate the decedent in life. I lost a grandparent in 2007 and 2008. I remember all of the photos brought to the funeral home showing them in their youth and early adulthood. I even saw pictures I had never seen before. But no one took a picture of the well-aged person in the casket. I wouldn't want that picture. Old and dead isn't a Kodak moment.

But my client was 17, not 77. His life was too short. And although I found it odd at the time, I now understand why so many wanted to capture his image in death. It's because he was 17. Unlike my grandparents, who I will always remember being younger than their age at death, this boy was only 17.

When I think of my grandfather, I don't see the mid 80's old man that we buried. I think of the mid 50's version that was always tanned from golfing. My grandmother was eaten slowly by Alzheimer's and didn't know any of us at the end. But I don't remember her like that. I remember the woman that made me pancakes whenever I asked.

The sad truth is that at age 17, this boy died in his prime. And that's how those that loved him want to remember him. I get that.

Does his mother care the murder rate went down in 2009?


Wednesday, January 13, 2010

The Art of War

I think anyone who litigates should read Sun Tzu's The Art of War. Surround and attack when you outnumber your opponent. Evade when you're outnumbered. And if evenly matched, you may offer battle.

The real world implications are obvious. Extrapolated further, always negotiate from a position of strength or you're not're begging. I have gotten very good plea deals after filing suppression motions that had merit.

Know they enemy. For me the enemy is not the prosecutor. It's the case. I go to war with the case. The prosecution just prepares the case for conflict. I use the rules of discovery to assess the strength of the enemy.

If I have a crap case, it's a crap case. Threatening World War 16 with scorched Earth isn't going to produce a good plea offer if everyone knows the case is a loser at trial. Right? And unfortunately I don't have 25 years experience that might make a young prosecutor think perhaps I could pull a not guilty out of a hat.

At my point in my career and where I practice, it's essential that I have good facts; either exculpatory facts or ones that can be argued like hell. In a close case, I have to own the jury or at least the right juror(s).

The Art of War as I see it, is knowing when to go to war. I see no wisdom in starting a war I cannot win. A war consumes tremendous resources such as time and money. In my business there is a generally a shortage of both.

Carl von Clausewitz wrote "war is a mere continuation of politics by other means." What does that statement mean to me? Is litigating lawyering by other means? Not all lawyers litigate. In fact, I doubt most do. Food for thought.


Friday, January 1, 2010

2009: A Review

2009 was my first complete year as a solo practitioner. It was also my first year doing only criminal defense. As I have written, when I hung out my shingle I had no intention of doing criminal work. In fact, I hadn't even thought about it. Workers' compensation litigation was what I knew and personal injury looked familiar enough to give it a go.

That was the plan. But like so many plans, something else happened. In the military I learned that any good plan should be flexible. It should allow for instant changes in response to unforeseen events during the execution phase. But that's not what happened to me. I abandoned my original plan in favor of one scratched in the dirt.

Essentially two reasons led me to where I am. First I had no money coming in doing the civil work. Sadly, I didn't even have any real clients. The referral base I thought existed was nothing but an illusion created by my naive sense of optimism. Second, was the successful argument of my first criminal motion. The first real case of any kind I accepted was a felony theft in Kane county. This was completely by chance. At the time I thought I was doing someone a favor. But in reality the favor was done for me. The motion of which I write was a simple motion for bond reduction. But something happened that day. My appetite for criminal defense work was revealed. I found a purpose.

As 2009 began I felt for the first time in my life I was doing what I was supposed to do. Everything about my past prepared me for this work. Growing up in a predominately African-American, low income neighborhood allows me to genuinely understand and care. My time in the U.S. Army infantry schooled me in firearms, taught me self-discipline and how to properly behave around those in authority.  And my science based undergraduate work allows me to digest forensics easily. I also have familiarity with street drugs and more importantly the drug market. I know how corners run and how money and dope are moved.

Where I grew up is probably the reason I am defense oriented. Most people are usually one way or the other naturally. A lot of my colleagues are former prosecutors that have switched. It would be great to believe one day they woke up and felt compelled to do defense work. The reality, however, is the move is almost universally financially motivated. And it's clear. You cannot fake caring.

Going into 2009 I felt caring too much might cause me grief. I couldn't figure out how to keep some cases from getting to me. That trick still evades me. By nature I have a very big heart. I want to help those in need. Because of this, there were many miserable times in 2009. Often I couldn't hit the game winning home run in the bottom of the 9th. Looking at strike 3 in the last out of the game can really cause self-doubt in one's abilities. Plus, the fans go home with a terrible feeling of emptiness. They will cringe the next time I am at bat with the game on the line. Once a failure, always a failure. But as I always have in life when knocked down and run over, I get back up. There is no quitting. It's not ego that drives me, it's pride. The character Marcellus Wallace said in the movie Pulp Fiction "Pride never helps, it only hurts." The jury is still out on the pride issue.

There are 39 felony trial courtrooms for the city of Chicago. Each courtroom has up to a few hundred open cases at any time. That is a massive number. The county jail has about 12,000 guests and there are close to 1,000 new felony arrests per week just in the city. The Cook County criminal justice system employs a ton of people.

If you want to be a criminal defense attorney and get your hands dirty, this is the place to be. My cases are almost entirely street crimes: drugs, guns, shootings, robberies, burglaries, and even a couple murders. About half of the weekly felony arrests are drug related. Chicago's lower income areas can be very violent. Gangs are everywhere. My work is not a movie, television, or novel. But at times I have to pinch myself because it can seem like one.

I can't think of any other area in the United States where I would have gotten as much experience as I have here in such a short time. And right now I have the luxury of only taking cases I want. I have turned down numerous minor traffic, DUI's, domestic, and sex cases.

Again peering back into early 2009, I didn't know was how many guns are here in Chicago. I didn't know that in some areas kids start carrying them as young as 13. And often pistols are not carried to intimidate, but for self-defense. Fist fights in the streets are rare, but shootings happen all day, every day. Cops get shot, kids get shot, and the elderly get shot too. There is a handgun ban in the city of Chicago that makes it illegal to own one (with very few law enforcement exceptions).

Somehow despite this city ordinance, pistols seem to grow from trees. A 16 year old can get a gun easier than a beer or a pack of smokes. I know people who have traded a bag of weed for a gun. $50.00 will get you a .38, bullets included. Most of the guns are unregistered or stolen. And I find it strange that some young prosecutors don't know the difference between a revolver and a semi-automatic. I didn't believe that statement could be true in a city with so much street crime. But, it is true. I have witnessed proof of it.

While all of these shootings are going on in Chicago, the 2nd Amendment folks are trying to get a suit challenging the gun ordinance in front of the U.S. Supreme Court. Personally, I don't care. I have no problem with responsible, non-felons having pistols in their homes. From where I sit, this ordinance is meaningless and in practice is rarely enforced anyway. It's simply another rotten fruit hanging from a withering tree of politics that people are fighting over. People fight and shoot each other over truly stupid things.

The pistols on our streets are not being acquired legally. Therefore, the laws governing purchases and ownership of them are ineffective. The Brady bill is nothing but a hurdle that one can limbo under. I think most handguns are probably purchased out of state by various means and imported in. And much like drugs, the supply and market find each other in the streets. For all of its allure and beauty, our windy city on the lake is violent as all hell. Compounding the problem is that many residents, and especially the suburbanites, have no clue what lurks. The people who have the power to make change are largely in the dark. Or they have read about it, but have never seen it up close. NIMBY...Not In My Back Yard.

This past summer there was a string of strong armed robberies on the city's north side. The street crime on the north side is very minimal. Residents of Lincoln Park, Lakeview, and other neighborhoods lost their minds. I witnessed angry rhetoric aimed at everyone from the mayor to local beat cops. People really thought the Chicago Police Department was inept because an immediate arrest wasn't made. And with every robbery came more anger. But the anger was driven by fear because the suspect was black. A black man robbing white people in a white neighborhood causes quite an uproar. And trust me, White Flight still has a strong pulse.

The racist comments left on the Sun Times and Tribune's websites were troubling. I guess racism is so deep-seeded in American culture it's never going to go away in my lifetime. A 1/2 black President has helped. But let's face it in too many areas of society, minorities are still seen as sub par. And it's still worse in the south. Although I don't know it as fact, I bet there are still hangings in the former confederacy.

A disturbing but constant belief in many circles is that blacks and Hispanics are more prone to crime than whites. Let's examine this a bit. Crime is higher in lower income areas. That's a fact. In Chicago, blacks and Hispanics predominately populate these areas. That's also a fact. But the conclusion that by nature blacks and Hispanics are more likely to be criminals, fails.

If you put white people in poverty there is crime too. Ever watch an episode of Cops? But in Chicago, there are no areas in the city where poor white people dominate the populace. Thus, most of those arrested are blacks and Hispanics because the crime is in their neighborhoods. Well, except for this north side robbery thing. And that's what freaked people out. The fear of crime spilling over into the good areas of town was too much. I can't imagine what Wrigleyville would look like if there were regular (or even one) drive-by shootings after a Cub's game. On the south side drive-by shootings after high school sporting events are frequent.

The north side is a world away from the south and west sides. I live in the north side. It is because I am racist? No. It's simply safer. I don't want to hear gunshots and sirens all night. I don't want to see people loitering on corners sipping cheap wine from brown bags. I want a clean neighborhood with nice businesses. And I like watching people walk their dogs.

Whereas I have a choice of where to live, most do not. I feel for the folks that cannot move somewhere safer or nicer. I am in those neighborhoods and homes on a daily basis. I am constantly reminded of where I come from. At times I feel home there. But I also appreciate how far I have come and take nothing I have for granted. I will forever be thankful for every favor, stroke of good luck, blessing, and act of help that came my way. I had to join the military to afford my higher education and I was in school for almost a decade. I studied for and took more exams than I care to remember. On a side note, my 2nd semester organic chemistry mid-terms made anything I saw in law school seem like a joke. The Bar exam, too, pales in comparison.

But even with all the hard work I had to put in to get me where I am today, I had a lot of good fortune along the way. A lot of people helped out and trust me, they know who they are because I tell them regularly.

Sitting here looking at the tail end of 2009, I wonder what, if anything, have I accomplished in this first year? I kept some people from going to prison and a few of them were actually innocent. That's nice. I negotiated shorter prison sentences for others. My little practice was very profitable but on a small scale. I made enough in fees to keep operating in horrible economic times. And almost all of my earnings came from the poorest areas of the city. Affordability has been my niche. What I lack in trial experience I make up for with customer service.

My greatest accomplishment this year is showing people I care. In a system that's overburdened and under served, it's not hard to stand out. I stood out by going to people's homes, meeting the family, listening to the problems, and offering to help when I could. I never oversold myself or promised anything but to do my best. And I think that's what people wanted. There must be piece of mind in knowing at least one person is on your side. In 2009, I was often that person.

Looking ahead to 2010, the only difference I see from 2009 is more jury trials. The crimes will be the same. The courthouses the same. The judges the same. And my clients will come from the same neighborhoods.

In conclusion, 2009 was an amazing learning experience in and out of the courtroom. I became a better lawyer everyday just by doing the work. But along the way I became a better person. The profitability of  2009 cannot be measured in dollars alone. The hugs from happy mothers and grandmothers have to enter the calculus.

While I may not have a lot of money, 2009 was a good year for payments in appreciation, acknowledgment, and thanks. I may not be able to afford a BMW or Mercedes, but I am still rich.