Tuesday, April 27, 2010

A Nightmare's End

Shortly after midnight on August 3, 2009, a would-be car hijacker shot a young man once in the back of the head, killing him instantly. The victim's car rolled through the intersection and crashed into a tree in a south Chicago front yard.

There were two passengers in the car. Riding shot-gun was the driver's girlfriend. And seated behind the driver was his best friend. Both passengers quickly exited the car and soon it caught on fire.

Several people called 911 with reports ranging from hearing a gunshot fired to a car crashed into a tree. One of the callers lived only 3 houses from the intersection where this happened. A couple minutes later, she called back to report the car was on fire.

After the fire department and police arrived the caller left her home to go to McDonald's. When she returned around 1:30 am, she found a number of Chicago police officers trying to get into her home. There might be a suspect inside, she was told. To which she replied that only her cousin was inside.

The cops go inside her home. In a bedroom they find a young black male in bed fully clothed. He was asleep. The young man is awakened, opens his eyes, and sees handguns and flashlights. He is quickly taken into custody.

Later that morning he is interrogated by a detective. He claims he has no idea what happened or why he is in custody. The detective attempts to trick him repeatedly, but the man's story remains unchanged: he knows nothing about what happened. He played basketball until 8:30 and crashed. He was asleep.

Eventually the man gets tired of the interrogation and asks for a lawyer. All questions stop.

The two passengers from the car are interviewed. The best friend already identified the man outside of the home in which he was arrested. The physical line-up at the police station is a formality as he easily recognizes the man again.

The following Saturday, the young man's mother called me on the phone. On Sunday I went to the county jail to meet her son. From the moment I shook his hand and looked him in the eyes, I didn't believe he was a murderer.

The following Friday I met his entire family in their south side home. My lack of experience was disclosed. His older sister grilled me hard. She wanted someone more experienced. I understood. The mother liked me. I was affordable. I was hired. 

In late August, the man was indicted. In September I made my first court appearance as his attorney when he was arraigned. I had some prior experience with the prosecutor but not with the judge. I was advised by other attorneys to get the case out of the assigned courtroom. Some don't like this judge.

But I kept it where it was because I liked the assistant state's attorney in charge. Though I had never litigated against him, I trusted him. I can't say why either. There is just something about him that made me feel he would keep it fair. He uses the word "buddy" a lot in speech, i.e. "Hey Marcus, how you doing, buddy?" I like that.

It's always nice when discovery goes exactly your way. The State had no physical evidence. I mean none. No gun. No blood. No gun shot residue. No prints. Nothing. Nada. What they did have was eyewitness testimony and that can be pretty compelling.

In early 2010, I filed 2 pre-trial motions: to quash arrest (based on no probable cause) and to suppress the show-up identification. I didn't expect the judge to sustain either motion since it's a murder case. Judges don't want to throw out murder cases. It's too political.

I intended to use the motion hearing as a quasi discovery deposition. I was able to get 3 police officers testifying under oath about the case. And I found out a lot, while impeaching one with his own arrest report.

The judge denied the motions as expected and we moved towards trial. The State was ordering more tests from the crime lab on clothing and such, but nothing came back that helped them. In fact, every negative test only helped my case.

I found out that the backseat passenger (the one that supposedly ID'd my client) was called to testify at the grand jury. But when he arrived he was no longer sure my client was the bad guy. Detectives tried to pressure him but he wouldn't give in. The lone eyewitness did not testify before the grand jury.

Instead, the State called the girlfriend who was unable to pick my client out of a line-up. Her testimony impeached itself. In about 4 pages of transcript she goes from not being able to identify the defendant in a lineup to being sure he was the shooter.

When I first reviewed the transcript I made notes all over it and stuck at least 20 post-it notes to various pages. I was going to have fun with this at trial.

It never seemed odd to me that the one eyewitness never testified before the grand jury but the occurrence witness did. I didn't catch it. I overlooked it. Then I got the note the ASA at the grand jury wrote about the eyewitness being unsure.

Once I read her hand-written note, the light bulb finally screwed in all the way and it made sense. My instinct told me all along the best friend's story wasn't accurate. It was inconsistent with itself, the police reports, and the evidence. The fact that he balked at the grand jury only confirmed my suspicion. At that point, I felt really good about this case.

What made me angry was that the grand jury business happened later the same month as the murder, August 2009. So less than one month after the shooting, the cops were on notice that the guy they arrested might not be the real killer. And they did nothing.

That's right. As test after test from the crime lab came back with no findings to link my client to any crime, the police did nothing. Why? I have written about this before. The reason is because for CPD purposes, the case was closed. They had their indictment. The case was in the court system. Done deal.

Did they know the defendant was going to hire a private attorney who would actually work the case up? I don't know. My suspicion is they were playing the odds that only an over-worked PD was ever have the case and it would sit for a couple years before being plead on a deal.

That mindset really pisses me off.

I hired an investigator out of my pocket. He tracked down the eyewitness, who agreed to meet him and have his statement recorded. And just as I suspected, the detective on the case pressured him to ID my client.
[Note: I edited out a lot of things this witness said happened. Why? Because the allegations are foul and involve a number of people in various offices in my local criminal justice system.

And more importantly, as far as I am concerned, they are only allegations. I do not have independent confirmation of most of what this young man alleges took place. Therefore, I feel it would be irresponsible for me to write as if everything we were told is correct factually when I have no confirmation this is the case.]
My investigator sent me a CD with the interview on it along with a written report. I made copies of both and gave them to the prosecutor in early April. By then the witness told the State he talked to my investigator, but he didn't tell him everything.

The day I handed over the interview was the final court date prior to trial. I honestly didn't know what the State was going to do. As I handed over my discovery I told the ASA to call me. He didn't.

Early last week I went into the courtroom and was told they would be ready on Tuesday, April 27, 2010. I admit I was a little shocked. I couldn't figure out why they were still going to proceed to trial. They had no case.

But the fact that the trial was still on made me worry a little. I spent a lot of time trying to think of any unseen landmines that may lie in waiting. And as much as I tried to invent a case for the State, I was unable to.

Last Thursday I got a message from the ASA about stipulating to a witnesses' testimony. At the time I was in a murder trial and didn't call him back until Monday morning. As I was putting together my trial notebook Monday afternoon, I realized I didn't have a copy of the results of a test performed at the crime lab.

I called. I left a message. A couple of hours later the prosecutor called back. I was sitting on my couch. The file was completely covering my coffee table. There was a legal pad on my lap. I was writing my opening statement. It was almost done.

"I don't want you to waste any more time tonight on this case buddy. I am going to nolle it tomorrow." The only words that came to my mind were "thank you." And that's what I said.

For non-lawyers, nolle is short for nolle prosequi, which in Latin means: unwilling to prosecute. Nolle is pronounced "nah-lee". In my jurisdiction, this is how the government dismisses or abandons a case. And the words "motion, State nolle pros" are almost as nice as "not guilty" or "motion to suppress sustained". As the defense, it means you won.

I walked into court this morning. The prosecutor looked deflated. It was almost a little sad because I like this man. His normal shine was gone. I said hello.

In the holding cell I found my client dressed in civilian clothes for trial. I told him the news and immediately his hand shot through the bars to grab my hand. He shook it enthusiastically while smiling and saying "thank you so much, Marcus. Thank you. Thank you. Thank you."

The holding cell erupted into celebration. For a moment I felt like the greatest attorney on the planet. That moment was brief and it quickly passed, however.

My client's case was called and it was dismissed. It took less than 10 seconds. The judge wished him good luck. I followed my client back into the holding area. He gave me a big, firm man hug prior to being placed back into the large cell. Only then did I really appreciate how tall he is.

I felt bad that he had been sitting in the county jail since last August with no bail. I felt bad for his mother. His 2 sisters. His little brother. And his 2 children. This whole thing really busted up a very tight family.

I also felt bad for the victim's parents. They were at every court date and looked at me like I was pure evil. And I am sure they were told all along that the man that killed their son was the person I stood next to in court. In the end, I wonder what they were told.

I went back into the courtroom. There was almost no one around. I grabbed the prosecutor by the arm and said "thank you."

"Don't mention it buddy. It was nice to see you again."



Sunday, April 25, 2010

Things My Father Said

This morning I was up early drinking a cup of coffee. I turned on the TV. I looked for something to watch. I ended up on the movie Bull Durham. I am one of the few people my age that never saw this movie.

The movie features Kevin Costner, Tim Robbins, and Susan Sarandon. And it's centered around baseball. When I was a boy and a young adult, I played baseball. My father taught me how to hit a ball at about age 4. From then on it seemed like every birthday brought either a new glove or bat.

In Bull Durham, Costner plays a seasoned, experienced catcher. Robbins is the young, hot-shot pitcher who hasn't quite got things figured out yet. But, like all those young, he thinks he knows all. Sarandon's character, while amusing, isn't necessary for this post.

At times in the movie, the elder player gives the newbie words of advice. I was reminded of my father's advice over the years while playing baseball. And though typically given in a sport's setting, the advice is applicable in everyday life.

My mother has given great advice over the years too. But she's from Brooklyn, thus more direct. "Pull your head out of your a$$!" I have had heard her say. It's funny, but my mother is like a drill sergeant. But she's a saint. I swear. 

I was a pitcher. No matter the situation, I could always hear my father's voice from the bleachers. "Don't aim. Just play catch." I honestly never understood that. If I don't aim, how am I going to throw a strike?

Only now at 39 do I know what he meant. Aiming indicates purpose and planning. But just playing catch is easy and fun. I think he was telling me to relax and have fun.

When I was at bat he would yell "don't swing for the fences. Make contact." At 12 I digested that one, but there is a deeper meaning. I never hit a home run. Ever. I was small. But I rarely struck out either. I put the ball in play and hit a lot of stand-up doubles.

By not swinging for the fences, I played to my strength. Making contact. Hidden meaning: know yourself. Do what you're good at.

When fall rolled around, the baseball was replaced by a football. Two things I remember Dad saying. "If the ball hits your hands, it should be caught." And, "don't run before you catch the ball. Look it into your hands."

I think the first one means that life isn't perfect, but no matter you should do what's expected. And for me the second bit speaks to slowing down and not trying to do 2 things at once. Catch the ball, then run. Simple.

I never knew my father to be a deep person. I never saw him read any philosopher, but he read a ton of novels. I prefer non-fiction. But that's beside the point. I doubt he ever intended his words of advice to be applied beyond baseball and football. Or did he?

Until this morning, I had forgotten what I have just written. I can't remember the last time I thought about playing Little League. My dad never missed one of those games. When I was in my early 20's, I played in an adult league. He came to one game. I was pitching. And I heard it again, "don't aim. Just play catch."

I still think he was telling his son to relax and have fun. Thinking back, whenever I tried too hard, I pitched poorly. I thought about too many things at once: type of pitch, grip, mechanics, release, location, speed, and so forth. That's way too much to think about before throwing a baseball.

Thinking about last week's trial, I could have used my father sitting in the gallery. Quite a difference these days though. I am no longer in Little League. I am in the majors. The show. I am a pro. And he would have been thrown out of court for yelling at me.

But the next time I am working and start to feel out of sorts, I am going to remember playing baseball and football. I am going to relax, not over think things, stay within myself, and make contact.



Friday, April 23, 2010

What Happened?

My client was convicted today of first degree murder and aggravated battery with a firearm for the shooting of a second person.

The jury deliberated for 45 minutes. One would think when a verdict is reached so quickly, that the case wasn't real close. When I heard a verdict had been reached everyone around me thought it was a not guilty. I did so too. Our joint assumption was based on the evidence presented during the trial.

No one, myself included, thought the case was a slam dunk for the state. We all thought if there was any slam dunking to be made, it was by the defense. The prosecutor thought the same thing. He didn't say as much to me, but it appeared so when he heard the verdict was back already.

When the verdict was read I was sure the clerk misspoke. I really did. Sitting here a couple hours later, I am still in shock. How did this happen? Why did this happen?

Next comes loser's self-analysis. It wasn't a perfect trial. I did make mistakes. But I think I did a good job. Everyone around me, client and his family included, said I did a good job. The prosecutor told me the same thing.

There were two defendants in this case and two juries. The other defendant's attorney is a very experienced assistant public defender who probably has more murder trial experience than anyone in the county. She also said I did a good job and was equally shocked at the verdict.

I am not going to discuss the facts of the case. It wouldn't be appropriate. But I really don't think a reasonable jury could have came up with this verdict on this case in 45 minutes. I just don't.

There was some goofy crap going on with my jury from the get go. I picked my jury on Tuesday afternoon. Like all juries in my jurisdiction, we picked 12 jurors and 2 alternates. The way this works is that all 14 hear the evidence and when closing arguments are done, the 2 alternates are dismissed.

The trial started Wednesday morning. Before we get started one juror calls in with a story about being at the hospital with a sick relative. She never comes to court. Now alternate 1, is juror 12. During lunch on Wednesday we are told another juror has travel plans on Friday and can't be here.

Since it appeared that the evidence would be done on Thursday, we decided that she could be dismissed as long as we would still have 12 on Friday morning to hear closing arguments and deliberate. But on Thursday a woman claimed her husband was sick and should couldn't come on Friday. It just so happens she was alternate 2.

By now the judge is pretty ticked off. And so am I. I had jurors that didn't want to be there. What the hell is that?

I am sorry but you don't get to be the beneficiary of all of these great American rights, freedoms, and privileges for free. Is your life so important that three days from it are worth more than a person's right to a fair and impartial jury trial? Really? Really?

Last night before we left the judge called the woman with the sick husband into chambers. At that time we didn't know if this person was dying from terminal cancer or had a tummy ache. It turns out he's diabetic and doesn't know which foods to eat.

The judge ordered her to be in court this morning. The travel plans girl was excused. Alternate 2 is now a juror. And this morning there were 12 in the box. Phew. Or at least I thought phew.

I gave what I thought was a good closing. I had the attention of all 12 jurors. When I got done and the prosecutor stood up to rebut my argument he was quite animated and pissed off. I thought I had scored points. If not, why such a ferocious attack at what I said?

If this case would have been a 45 minute guilty verdict, I wouldn't have taken it to trial. I may still be green at trying cases, but I know a dead losing case when I see one. A 45 minute guilty verdict on a murder case is for dead losers. My client's case was no dead loser.

The jurors did not want to stick around to talk to the attorneys from either side after the verdict was read. There's a shocker. I guess their Friday afternoons are more important than at least the next 45 years of my client's life. 45 minutes for 45 years. That's rough people. Really rough.

Now I am sitting here thinking of my post-trial motion for a new trial.  I am contemplating ways that I can blame everything on me in the hope somewhere down the road this young man does get a new trial. And if that happens, I hope he gets a real jury the next time.

I ask anyone that might be reading this to do your duty as a juror should you ever have to sit and hear a case of any kind. The American system doesn't ask much of its citizens but provides so much. If the call comes, be a real American. Please.



Wednesday, April 21, 2010

Just Relax

I have to be brief. I just finished day 1 of a murder trial at 26th & California. My client could fave up to 85 years in prison if convicted. He was 16 when arrested. Today he is 18.

This young man should be in the hall of fame of positive attitudes. Every time I see him, he smiles. He tells me that he's blessed. He asks me how I am doing. And at no time has he ever said anything mean spirited about anyone involved in his case.

I have been told many times by him that he's innocent.

Today was day 1 of the trial. The State's case started to unravel a little this morning before we began. The prosecutor made my client an offer for the first time. 25 years at 100%. When I told the client the offer he asked "why are you telling me?" I explained that I have to. He smiled and said "I hope you laughed at them!"

I took a seat next to him in the holding area. He told me I just need to relax and things would be just fine. I get to go home everyday, but if things go really wrong he won't be going home for a long time, if ever. I wondered how he could be so calm. And I asked.

I was told the Lord has spoken to him and showed him the coming victory. According to the client, I am just supposed to talk and do my job. From there everything will follow.

The trial started. I will write more when it's over. At the end of today, my client told me to do more of the same tomorrow. I will.

This might make a church-goer of me.



Tuesday, April 13, 2010

The World Gets Strange

In January I proposed a program I called Cash for Guns. I wrote about it here.

As a sign that the world is going strange, tonight I got a text message from the Chicago Police Department. In the text message was this link.

Honestly, I don't think $100 is enough. But, it's a start.



Being Careful

Part of my job duties involve me driving into the most violent parts of Chicago. From meeting clients, to interviewing witnesses, to investigating crime scenes I am in the hood several times per week.

I don't spook easily. I grew up in the inner city and learned how to grow eyes in the back of my head. Maybe it's a survival skill. People that know me will tell you I never sit with my back to the door. Anywhere.

I never noticed this either. A friend picked up on it. No matter where we went to eat, I always took the seat at the table that allowed me to see the front door. I always thought I just liked to people watch. I guess I like to watch and make sure trouble isn't headed my way.

Fighter pilots talk about situational awareness. Knowing what's going on around you in the air may save your life. It's always the missile up your tailpipe from the unseen bandit on your six that gets you.

When I was a kid my neighborhood wasn't full of gangs and guns. But you never wanted to get jumped and have your bike stolen. I knew other kids that went through this. Although my bike did get stolen a few times, it was never taken from me physically. I am a pretty careful person. Most of the time, anyway.

I have tried to keep from driving into the hot spots at night whenever possible. I have this perception that most violent crime happens when the sun is down. A few months ago I was in Roseland one morning. My car window was smashed and my GPS unit stolen.

That was my fault. It was the first time I ever left it out when I parked anywhere. It was a mistake and I got caught slipping. The loss of the $200 GPS wasn't what made me mad. Having a busted window and glass all over the inside of my car really bothered me. It was chilly fall morning. I was able to get the window replaced later that day for the low, low price of $189. And the glass company came to my house to do the work.

The kid that took my GPS probably rode his bike straight to his fence and got $25 for it. And the fence probably sold it for $75. That is the redistribution of wealth. And it stimulated the economy since I had to buy a new window. But the money I used to buy that window came from the same neighborhood my GPS ended up in.

100% of the money I make comes from fees I am paid to represent people in Chicago criminal courts. Most of my clients are from neighborhoods where GPS units can be had on the street for $75

My GPS incident could have and should have been avoided. By leaving it out on the dashboard, I was careless. And by being careless in the wrong neighborhood, I was asking for trouble. Trouble found me.

Sometimes good people end up with police troubles. It can just find you.

I had a client last year that spent 3 hours a day on public transportation to make $9.00 an hour with no benefits. He had 10 years on the job. He had 4 children. They all lived with him. He provided. He sacrificed.

Then one day last summer the police locked him up. His bond was $32,000 to walk. His family didn't have the money. And so he sat. He youngest child was only 8 days old when he was arrested. For 5 months he couldn't touch any of his children. For 5 months, once a week, he got to look at his loved ones through plastic glass. And speak to them through a speaker system that often doesn't work.

When the jury's verdict of not guilty was read, he broke into tears. So did his mother. So did I. A little. It was early December. He wouldn't miss his baby's 1st Christmas. But he lost his job.

Sometimes being careful isn't enough. Having the wrong skin color, last name, or address can cause problems. I didn't need this client's case that bad. In his case the system worked. But how just is a system that takes a law abiding man from his family for 5 months and offers no apologies?

What about the folks who have been wrongfully convicted only to be freed 10-15-20 years later? Some of them get a check. But can money replace lost time? Can money buy back memories you lost out on? Will money restore bonds with loved ones that were severed or severely tarnished?

No. It won't. Nothing will. I wish the government would think more before they act. I can't be the only attorney in the city with a number of cases that shouldn't have been charged. Could I be the only one graced with innocent clients? No. Impossible.

Lawyers are taught objectivity in law school. It's the most valuable skill we ever learn and use. I have looked at enough cases objectively and determined my client was likely guilty. But I have seen too many where it's not even close. And it seems like the more serious the case, the more monkey business is behind it.

If government officials, i.e. police and prosecutors, will stop at nothing to convict the defendant, then the system is broken. Make sure this defendant is the right defendant. That's easy to understand, but it's not being done. Instead they get a defendant that will work and close the case.

By the time I have been doing this for a couple of decades, I am going to have enough sad stories to fill a library. Are innocent people convicted? All the time. Are innocent people convicted by way of the underhanded acts of those attempting to convict? Sometimes, yes.

I am going to go out on a limb here, but I imagine if you read the story behind every person exonerated by DNA, you will find police and/or prosecutorial misconduct on some level.

I think we all need to be a little more careful.



Monday, April 12, 2010

The Battle Not Fought

Through political might nations can win wars without fighting battles. A battle should always be avoided if possible because they can be risky and costly. I am sure Sun Tzu wrote something about this. And I am sure I read it.

It's not often we defense attorneys get the State by the short and curly's. What I mean is that we don't normally get cases that put us in a position of strength. Some attorneys will bluff and say they have a great case. They will also claim they are not afraid to try it.

Sometimes this approach works and sometimes it doesn't. If the State knows they have a winner, threats are meaningless. If it's a close case and the attorney is competent, they might think a bit. And if the State's case is horrible, they won't want to try it.

In theory the State shouldn't have any horrible cases. Between felony review, the grand jury, and preliminary hearings, weak cases should be weeded out.

So much for that theory.

In February I had an attempt murder case set for trial. When I showed up ready for trial, I was told the State wasn't. I wrote about it. The case was reset for today, April 12, 2010.

A couple of weeks ago, I had to call the prosecutor to remind her she owed me some discovery. Last Monday we met outside the courtroom. She said "your client's not willing to take anything (meaning a plea bargain)?"

"I don't know. You haven't made an offer" was my response.

At no time in my handling of this case have I asked for a plea deal offer. Why? It would tell the State a couple of things: #1 that I don't want to try the case, and because of this, #2 my case is bad.

I do not like having to ask for deals. I hate it. My hesitancy about asking for plea deals is that is makes me appear weak. Either my case isn't too good or I am too lazy to try it.

Granted I do handle the occasional case where the client will likely get probation at the arraignment. In those situations, I am asked by the client to seek a deal. Since I work for the client, I can't say no. So, I do it. And normally with good results.

But this attempt murder case was my first really violent case. My first shooting. I happened to be outside of the courthouse where the defendant was making his first court appearance. His cousin asked me if I was a lawyer.

I didn't want to take a shooting case that was a dead loser. I went to the jail to talk to the defendant. He was innocent. That was his story. He told me what the physical evidence was going to show. I wasn't convinced from the start. But I took the case. I liked him.

The defendant was barely 18. He stands about 5'4" and maybe weighs 130 lbs. He is a baby. And his voice squeaks like a 13 year old going through puberty. When we first met he had a hard time looking me in the eye while declaring his innocence. Instead he would smile, look up, and shake his head while stating "I didn't shoot that boy."

In the beginning I was never sure I was hearing the truth. But I learned that's just the way he is. And without fail, every time we went to court another little nugget of favorable evidence came my way.

I had originally planned to have his case tried before Christmas 2009. But the State (or the cops) couldn't find a very key piece of evidence I wanted. In fact, it was the piece of evidence in the case.  I was yelled at in court by one of the prosecutors because of my persistent requests that the evidence be produced.

I was told on numerous occasions the police didn't have it. I was told the State didn't have it either. Then I was told it was at the jail. I knew this to be false. Finally it was produced in November or 90 days after I initially asked for it. The cops had it. And the minute I saw it, I knew my case was strong. And I am sure the State knew too.

Was the evidence hidden? I don't know. But evidence that inculpates the defendant is never lost for some reason.

The case was set for trial in late February. With the help of a gracious De Paul first year law student, it was prepped during the week leading up. I drafted the opening. I prepared my trial notebook. I had cross ready. I prepared photograph exhibits. The motion in limine was ready with supporting case law copied. The case was ready. And I was ready to put it on.

The evidence against him was eyewitness testimony from up to 5 people. All of them would testify he held a gun and fired it at a group of 4 boys, hitting one of them in the leg. On the surface that seems pretty strong.

The great thing about this case is that the more I dug, the better it got. Eventually it became apparent the case was largely fabricated. And all of the physical evidence was in our favor. I liked this case.

The State claimed they had witness problems in February. I demanded trial. Before the defendant left the courtroom in February the judge admonished him on the record. I had never seen this done before. The judge told him that should he be convicted on any of the attempt murder charges, he would get 31 years to natural life in prison. Scare tactic?

The client stood there unmoved. My stomach turned. That's a lot of time. 

After the case was reset for today, I was talking to my client in the interview room next to the holding cell. I told him April 12 is my birthday. "You're going to try my case on your birthday?" he asked. "Do I have a choice?" was my response.

Back to last Monday. The prosecutor asked if my client would be interested in a plea deal. I was listening like a parent to his child that just got detention at school. I was asked if a deal for probation might work. It might.

I ran into the same prosecutor later last week. Probation? Are you offering? I will answer ready on Monday. Do you have my discovery?

This morning I had the client brought into the interview room. I had no official offer, but I told him about last week. "I get to go home today if I take probation? Hell yes!"

The offer came. The client accepted.

What did I learn? A lot. From the start I carried myself as if I was confident about this case. I was. Never was I cocky, obnoxious, or an ass. I was a pain in the ass, but that's my job. In a tactful way, I let the government know I was ready to take this one to a jury. I can only assume they saw the same weaknesses in their case as I did.

If I would have asked for a deal last year, I would have been offered 10-15 years in prison at 85%. I knew that. The client knew it too. It wasn't until the State knew I was going to put the case on that they really started to scrutinize it.

Was today as good as an acquittal? No. I won't get to claim a trial victory. But my client is going home as if we had gotten a not guilty. And there was no risk of a guilty and a long time downstate. I feel good about it. Everyone is happy.

By the time I got to court today, I forgot it was my birthday. It's just another year. No big deal. I was again consumed about this case. I would have thought the possibility of decades of prison would have been weighing heavy on my client's head.

But after we sat down and before I even mentioned the word probation, he said "I want to wish you a happy birthday."

I might not forget this one.



Friday, April 9, 2010


I attended a seminar yesterday on trial evidence. The instructors were Professor Thomas Mauet and retired Illinois Appellate Justice, Warren Wolfson. Professor Mauet is very well known in litigation circles. In fact, he authored my law school trial advocacy textbook. Come to think of it, he also authored my lawyering skills textbook as well.

Mauet and Justice Wolfson have co-authored a book on trial evidence, the subject of yesterday's seminar. Justice Wolfson was a very well known Chicago criminal defense attorney before being appointed a judge. He presided over tort cases for a long time at the Daley Center before being appointed to the Appellate Court.

At the seminar yesterday I heard a number of horror stories about judges. And most of these stories came from Justice Wolfson. I was told of judges that didn't know the law and were mean (among other things).

I think most of these stories involved Federal judges. For those of you that don't know, Federal judges are appointed by the U.S. President. And the appointment is for life. If that isn't job security, I don't know what is. Granted the appointments have to be approved by congress, but once they are in, they are in for good.

What this means is they don't have to be nice to anyone. After all, they don't have to run for election or hope to be reappointed by the state supreme court. But, state judges do.

I feel pretty fortunate to have the city of Chicago judges. Some have their quirks, but most of them are very pleasant, fair, and know the law. There are only 2 judges I try to get cases away from if assigned, and even then it depends on the case.

Before a trial last December, the judge said to myself and the prosecutors "you guys run the trial, I just sit back and call balls and strikes." I like that.

A lot of the city judges are former prosecutors. A very few are former defense attorneys. But I haven't seen too much favoritism. I think some of the younger judges give the police too much deference. But there is balance.

Though the law is the law, each courtroom is different. A winning motion to suppress in one courtroom might be  a dead loser in a different courtroom. But as far as applying procedural rules and day to day fairness, I think they are about all the same.

But these Chicago judges are part of the same over-crowded, under-staffed criminal justice system as myself. And everyone in the system understands what we do. There is almost an unspoken bond between the judges, prosecutors, clerks, sheriffs, and defense attorneys. We may all have different jobs and functions, but we all chew the same dirt. Day after day.

The city of Chicago is about as blue collar as there is. And most of the city judges seem to be wired the same way. They don't appreciate high rhetoric or attorneys that wear gators. They want attorneys to be prepared for court. And they want attorneys to actually show up. Demanding little buggars these judges are.

In all seriousness, be prepared for court. Be respectful in the courtroom to everyone. When in front of the judge, keep it as short as possible. And don't whine or bicker.

I have gotten a lot of mileage from judges by telling them I didn't know something as opposed to trying to make something up. We lawyers aren't supposed to know everything. Just where to look it up. Judges look stuff up to. They have some of the same books in chambers that are on my shelves at home.

Whenever I have gotten into a situation in court where something was going down that was unfamiliar to me, I haven't hesitated to call a time out. "Your honor, can we please discuss this with more depth?" Are they going to say no? Not my judges. Though this system is flooded with cases and defendants, all of the judges go out of their way to make sure everyone in the field knows the rules, the score and pitch count.

Early last year I introduced myself to a judge and asked him if he had any special ground rules for his courtroom. I had just had 2 cases assigned to his courtroom back to back. I thought an introduction was in order. But I also wanted to know how to stay off his bad side.

The thing I remember most about his instructions is that it was important to get along with the State. I took that advice and applied it to every courtroom.

At my last trial, I ran into the judge outside of the courtroom while the jury was deliberating. I asked him how I had done. This judge is one of the few former defense attorneys that now sit. And city of Chicago trial judges see a lot of trial attorneys. Who better to get a performance opinion from? "With this case, you have done a really good job" I was told. That comment provided a thin shield against the stun of the guilty verdict that came an hour later. But I will never forget it, nor the man that said it.

I have yet to get really reprimanded by a judge. Oh I got hollered at once by another judge for shuffling papers and making too much noise. But my grandmother used to yell at me for not sitting still. Kind of the same thing. And this judge calls me by my first name, so it didn't feel like I was really getting yelled at. It felt like a grandparent barking at me.

Because of that feeling, being in court is often as comfortable as being home. Other times, however, it's completely terrifying and makes my palms wet. I still get nervous. I think I always will.

I have played guitar in bands. I have played in front of a couple thousand people. I have also played in front of a few. No matter the size of the stage or the crowd, I always got nervous. Court is the same.

Court might be more intense. In a band, I was 1 of 4 on the stage. And if I missed a note, no one would likely hear it. I would know, but no one else. Court, on the other hand, is more personal. When I am speaking, it's just me. And if I say something stupid, everyone is going to know. There is no hiding.

And if I really blow it in court, it might cost someone years of their life. The stakes are much higher. I was never a professional musician per se, but I am supposed to be a professional attorney.

To cure my pre-gig butterflies, I used to drink a little vodka with some orange juice. I only needed one good drink to slow things down and allow me to relax. I would have never dreamed of being drunk on stage. I have too much pride.

What do I drink before court? Coffee. And lots of it. It's not spiked either. Unless you count Splenda and flavored creamer. You would think this would just make me even jittier. I am not sure that it really does. The caffeine mixed with adrenaline is quite the one-two punch.

There's something to be said for knowing you're alive.



Wednesday, April 7, 2010

Juvenile Background

In the criminal law world, we use the word "background" when we talk about a person's criminal record. If I say the defendant has no background, I am stating the defendant has no convictions. Typically for court purposes, mere arrests are not mentioned.

I used to think that crimes committed when one is a juvenile were somehow sealed behind some iron curtain. And that such crimes could never be used against that person later in life. That's what I thought. I imagine most people think the same.

A purpose for the juvenile court system, among others, is that we know kids do dumb things. And we usually don't want to imprison them. We all do stupid things while young. But some are more stupid than others. I have seen juvenile backgrounds and most cases are screened out. This means they are let go with a slap on the wrist.

A formal adjudication is entered when the case is serious enough or when the wrists are too swollen and bruised to slap further. Being formally adjudicated leads to juvenile probation or detention. A juvenile adjudication is basically the same thing as an adult conviction.

Illinois has pretty tough juvenile laws. 1st degree murder, aggravated criminal sexual assault, armed robbery with a firearm, aggravated battery with a firearm (shooting someone), and aggravated vehicular hijacking with a firearm are crimes that by law are excluded from juvenile court if the defendant is 15 or older.

Though the juvenile is not kept in the adult county jail, their case is entirely in adult court by law. Naturally, they are sentenced as adults as well.

I have never been in juvenile court. I know where it is. But that's about it. And until recently, I didn't have much experience with juveniles being charged as adults. Last month I was hired to represent a 16 year old charged with armed robbery with a firearm.

He allegedly was one of 3 boys that committed the crime. He is not alleged to have ever held a gun. But under Illinois accomplice liability, it doesn't matter. Even if there was only 1 gun, all 3 of them are criminally liable for it.

If I hand you my gun so you can walk into a 7-11 and hold it up, I am just as liable as if I had gone in and did the robbery myself.

Armed robbery is a Class X felony. It's non-probationable. And one cannot be sentenced to Cook County Impact Incarceration for it. Impact Incarceration is commonly known as Boot Camp. The prison system also has the same program, but they are different in how they operate.

My 16 year old client is looking at 6 years minimum and another 15 on top of that if the State proceeds on the gun. Class X felonies are sentenced from 6 to 30 years in prison. If a firearm was used in the commission of the crime, another 15 years is added. If the firearm is discharged, it's another 20 years. And if the firearm actually shoots someone, it's another 25 years.

If the victim is shot, it's going to be an 85% sentence, meaning the defendant does 85% of the time. Even if the judge sentenced the minimum of 6 years on the Class X, once 25 more is added for the gun, it's 31 years at 85%. That's over 26 years of real time. 

An armed robbery gone wrong can earn a sentence of up to 55 years at 85%. But someone can get the minimum of 20 years for a first degree murder.

Let me take a moment to explain this 85% business. Most prison sentences are much shorter in real time than what the judge gives. In Illinois most crimes are 50%. This means if sentenced to 6 years, it's only 3 years of real time. But shorter sentences are less than 50%. A 1 year sentence is only 61 days of real time. And a 2 year sentence is about 6 months.

But if great bodily harm is caused during the crime, the sentence is served at 85%. First degree murder convictions are typically served at 100%.

Back to my juvenile client: it's a bad case. The police pulled up to the scene as this robbery was taking place. They claim they saw where all the offenders ran. And they claim my client was one of them. The client signed a written confession in the presence of his father.

The only way I see anything but prison time for this boy is if the State agrees to reduce the case to aggravated robbery, a Class 1 felony. A reduction in charge would bring this case back into a possible probation scenario or maybe boot camp when he turns 17 in a few months.

His bond was initially set at $250,000 D. This means he would have to post $25,000 to be released from juvenile custody. Doesn't this bond seem a bit excessive for a 16 year old with no background? $25,000...really?

Apparently the judge agreed with me. I arraigned this case today and asked the judge to review his bond. I asked the preliminary judge for a bond reduction last month. My request was denied. However, the trial judge cut his bond in half. I consider this a very small victory. But $12,500 is still a lot of money for a kid from the South side of Chicago.

According to police records, the offenders got no money from the victim. There was no cash in his wallet. Was the juice worth the squeeze? I think not.

On another juvenile note, I had a 17 year old client plead guilty to a gun this morning. He would have gotten probation, but he had a juvenile felony adjudication a couple of years ago. Despite the fact he was 15 when it allegedly happened, he paid for it today as an adult.

The judge did not give him a pass.



Tuesday, April 6, 2010

The 4th Amendment Has A Pulse

A recent case from the Illinois Appellate Court caught my eye. A defendant was charged and convicted of felony driving with no license. He was sentenced to 2 years in prison. That's right, 2 years in prison for driving with no license.

A Chicago police officer was driving behind a white Cadillac. The car pulled over and came to a stop in a no parking zone on a residential street. The officer turned on his emergency lights and stopped behind the Cadillac.

The officer approached the car and asked the driver for his license. Behind the wheel was the defendant who was only able to produce a state ID card. A check on the man's name revealed his license was not valid due to a prior DUI.

On appeal, the defendant alleged ineffective assistance of counsel. This claim was based on the fact that the defense attorney did not file a motion to suppress the evidence that defendant had no license.

Ineffective assistance of counsel is alleged in almost every appeal. If the trial didn't go right, blame the lawyer. The hallmark U.S. Supreme Court case that set the standard for these claims is Strickland v. Washington. I read this case in advanced criminal procedure in law school.

The Strickland test has 2 prongs: #1 did the lawyer screw up, and #2 if the lawyer did screw up, was the defendant prejudiced? In other words, did the lawyer screw up so bad that it ruined the case for the defendant?

Reviewing courts rarely find ineffective assistance of counsel. There is no perfect trial. And the courts tend to punt these claims and call the actions of the attorney trial strategy. What happens inside the courtroom walls is almost always called trial strategy. Typical strategic decisions include which witnesses to call, what evidence to introduce, when to object, and so forth.

I have read so very few Illinois cases where a court agreed the lawyer messed up. In the case I read today, the court agreed with the defendant. Here is why.

The court wrote that once the police officer turned on his lights and approached the car in the manner he did, the 4th amendment was implicated. The State argued the defendant's car pulled over on its own and that the officer was not making a traffic stop. I thought this argument was pretty good.

But the court reasoned that the officer's actions were a Terry stop. This conclusion was based on the totality of the circumstances. The court wrote that the defendant upon seeing a police car behind him with its emergency lights on and an officer walking up to his car, would not have felt free to leave. The court, therefore, concluded this encounter with the police was not consensual, thus the 4th Amendment applied.

The court held that since the officer observed the car make no traffic violations before he turned on the lights and approached the car, there was no reasonable articulable basis for the Terry stop.

The court even went further, which shocked me. I have had clients that were approached this way while parked in a no parking zone. In this case, the court noted that the occupants of the car never exited the vehicle. And there was no evidence that the zone they were parked in was also a no standing zone. In other words, the court found nothing in the record to indicate the car was violating any law or local ordinance by stopping where it did. If I understood the case correctly, a vehicle isn't legally parked until the car has been left.

The court reasoned, therefore, the police officer's actions were not justified. And the court wrote that  a motion to suppress the evidence that defendant's license was not valid would have likely succeeded, thus the attorney messed up.

The reason this case caught my eye is not how the court ruled. In my opinion, it applied the law. What I found interesting is how insignificant of a case this was. The defendant was out of prison a long time ago. All this decision did was vacate his conviction.

I am glad to see the appellate court still thinks the 4th amendment is alive and well. I just wish they would apply it to a case where the police conduct was more flagrant and the defendant lost more than a few months in prison.

This case feels like a bone that was thrown to the defense bar.



Monday, April 5, 2010

Self Defense

I recently took a case for a young man that was arrested for carrying a pistol. His cousin was shot and killed. Thinking he might be next, he armed himself.

I started wondering what would happen if he ever had to use that gun in self-defense. Not that I would carry a gun, but if I did it would be for protection. And naturally a gun carried for protection will likely be used for protection, if at all. If someone shoots and me while I am armed, I am shooting back. If not, why carry the gun in the first place?

What if while in the act of protecting myself against someone shooting at me, I fire and kill the aggressor? In Illinois this could get really ugly. I mean really ugly.

Lets assume this happened on a street corner or maybe in a car. Even though the killing happened in self-defense, I am not sure the State's attorney's office or the police are going to give this one a pass. No way. Murder charges will be brought. I am sure of it.

Most likely it will be characterized as gang violence, so who cares? Neither party should have had a gun in the first place. One is already dead and now the other one should go to prison. I understand this mentality.

The logical extension of this is that at least in the city of Chicago, one can only act in self-defense with lawful items and at a time when it's lawful to carry it. Shotguns are legal. Walking around the street with one is not legal. Carrying a loaded one inside the passenger compartment of a car is also not legal.

The choices are pretty narrow. If someone pulls a drive by on me and I can't shoot a firearm at them...well I guess that leaves a bow and arrow. Is this right? This is a fact that feeds the argument that since the criminals are armed anyway, law abiding citizens should be allowed to arm as well, like in Texas. This is giving me a headache.

However, just being charged with murder doesn't mean a conviction will follow. After all, the defendant will get his day in court.

Self-defense is tricky. The defendant is going to likely have to testify. The jury needs to hear from the defendant why he believed using deadly force was necessary. And pretty much anything that goes to the defendant's state of mind at the time is relevant.

If the judge feels enough evidence was offered, a self-defense jury instruction is given. Jury instructions aid the jury during deliberations. In Illinois we use pattern instructions, or ones that are already written. They can be altered, however.

There are common instructions that are used in every case, such as: the State has the burden of proof, opening and closing statements are not evidence (yeah, right), etc. Then each charge has a specific instruction.

For instance, possession with intent to deliver a controlled substance has a 2 part instruction. Part 1, did the defendant possess the drugs, and Part 2, did he intend to deliver (sell) it.

In order to find the defendant guilty of that charge, the jury would have to unanimously decide the State proved both parts beyond a reasonable doubt. Easy. Of course, we have other instructions that define words like possession or knowingly for example. Even a simple case can use over 10 jury instructions.

Here is the text of the Illinois Pattern Instruction on Self-Defense:

24-25.06 Use Of Force In Defense Of A Person

A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend [ (himself) (another) ]against the imminent use of unlawful force.

[However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent [ (imminent death or great bodily harm to[ (himself) (another) ]) (the commission of ________ )].]
Now you should understand why self-defense is tricky. The instruction is wordy, right? The word that really sticks out in this instruction is reasonable. What is reasonable? I have no idea.

Is shooting someone coming at you with a wet noodle reasonable? Probably not. But how about a baseball bat? A pipe? A broken whiskey bottle? A-ha. It's case by case and that one word, reasonable, is argued heavily in criminal court rooms. The jury decides what's reasonable.

There is also defense of property, and this usually has more teeth. I don't have statistics, but I suspect it's much easier to be relieved of criminal liability while using deadly force in defense of your home compared to defense of your person. Well, if you're using a shotgun or rifle at least.

Perhaps it's naturally implied that if you're defending your home, you're defending yourself, and perhaps others, as a matter of consequence.

Defense of another is also used at times. I don't think I have ever read a case that used this is a defense. But in principle it's pretty simple. Defendant uses force to stop the aggressor from robbing/killing/stabbing/punching/[insert violent act here]. I have a matter going to trial in May where I am using this as a defense. It's not a good case.  

As a juror this has to be confusing. On the one hand the State will argue the defendant shouldn't have had the gun. Possessing the weapon was illegal. Discharging the weapon was even more illegal.

Now the defense attorney has to remind the jury that the self-defense analysis does not hinge on whether or not the weapon used was legal. It doesn't. No where in that instruction is reference to such an idea mentioned. But that issue isn't going to be completely skipped.

In addition to the first degree murder charge, the defendant will also likely face several weapons charges. Therefore, even if the jury finds the use of deadly force in self-defense was justified, the defendant could still go to prison for having or using the pistol.

Now my headache is worse.