Tuesday, May 17, 2011

Justice Served, Finally

Last June I wrote about a case of mine. Please take a minute to read the prior post so what's to follow actually makes sense. And yesterday I barked a little about how sometimes justice is elusive to those that need it most. I am happy today to report that my client, Mike, got justice. Here is how it happened:

The day I wrote the post last June, Mike's case was set for trial. The State didn't answer ready. The trial was reset for July. On the date of trial in July, the police didn't show up. Trial reset for August. In August the police were there. There were four of them. Two were the State's witnesses and two were mine.

When I stepped into the room where officers subpoenaed for court wait, I saw a number of cops. I didn't know who any of them were. And they didn't know me. But they knew I was a defense attorney. I asked if my two officers were present. I was told they were not. Being the friendly fellow I am, I stayed in the room and began chatting with a couple of the cops.

As it turns out, two of the cops were indeed the two I subpoenaed. They both had lied to me. They initially had no idea why they were there. They hadn't arrested anyone that had court that day. From talking with me, however, one of them figured out why they were there: to help my client's case.

The two officers I subpoenaed had responded to the domestic call between Mike's lady friend and her boyfriend. They were both on scene when Mike showed up to help the woman move out. And they both stood there and had a conversation with Mike while the woman loaded her things.

These police officers were also the ones that arrested the boyfriend for making a false police report. You think they had relevant testimony that supported my theory of the case? You betcha.

The one officer that figured out what was going on quickly pulled a prosecutor out in the hall and closed the door. The next thing I know I am being told the State cant' answer ready. Really? Why not? Everyone is here?

Unfortunately the courtroom this case was assigned to was so backed up that nothing ever got litigated. I saw guilty pleas and continuances. That was it. The judge readily continued the case until October.

When the October trial date rolled around, the prosecutors assigned to the courtroom changed. The guy now running the courtroom hadn't looked at the file. He couldn't answer ready. Wow, shocker. Case continued until December.

Due to the retirement of the judge, the was was reassigned. Great. Now I am on the 3rd set of prosecutors. But at least cases move through the new courtroom. And it's a very good judge. I set the case for a bench trial in early February. But the trial didn't go. No cops.

I pulled one of the prosecutors aside and told her about this case. And I threw my playbook on the table, opened it up to my theory of this case and told her how I was going to win at trial. I wasn't arrogant about it. I wasn't a jerk. But she knew they had a loser.

Long story short, over the next couple months we discussed a disposition that would keep my client from getting a felony conviction. Even though I liked this case at trial, I couldn't guarantee a not guilty. My client initially balked. He didn't want to admit to something he didn't do. But he eventually agreed to go along with what the State and I were trying to put together.

I ended up writing a letter to the ASA in charge of this courthouse. This guy doesn't come to courtrooms. He's the boss. I told him who my client is and explained what I felt the facts were. I explained my theory of the case and added I wasn't afraid to try it.

I walked into the courtroom this morning and was told the case was being dismissed. I can't describe how hearing this made me feel. It was awesome. My client wasn't there yet. I stood outside the courtroom and waited for him to arrive. I felt like a child waiting to tell my dad I had got straight A's on my report card. The giddiness was at that level.

He showed up. I told him. He smiled. We shook hands. 10 minutes later we were in front of the judge. The case was dismissed. He thanked me and left. Mission complete, I thought to myself.

There are two points to this post. First, is that the system can and does at times work. Justice can be delivered. Second, this story should illustrate how damn hard and frustrating it can be to deliver that justice to the criminal defendant. There are numbers of people trying to get justice for The People of the State of Illinois.

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


Monday, May 16, 2011

DWB: Driving While Black

Everyone has heard of DUI or DWI. But have you heard of DWB? Driving While Black appears no where in any law book I've ever read. I've never read it in a case, either. And I am sure it's not in any Chicago Police Department training manuals. But, it's a condition as real as cancer.

Everyone (even non-lawyers) seems to know instinctively that the police should have a reason to pull you over while you're driving. Speeding. Running a red light. Busted brake lights. Incomplete stop at a stop sign. Feeling a bank robbery. Our own sense of right and wrong tells us that the cops can't just pull us over willy nilly. But they do it. All the time.

Driving around with contraband (drugs and guns) in your car is what we call Riding Dirty. This act is, of course, illegal. In some cases an unloaded gun locked in a box might be ok. But I am talking about a pistol in the glove box, under the driver's seat, or in the console. That's always illegal. And of course, drugs are bad too.

I can't count how many cases I've handled that began from a traffic stop for Driving While Black. It's a bunch. That's all I know. I have seen with my own eyes on several occasions the police curb a vehicle and immediately pull out the people in the car and perform a full custodial search of them. And then rifle through the car. I've actually pulled over and watched this from a distance.

When I was new to this business, I was told this stuff happens all the time. I didn't believe it. Until I saw it. But I thought the first time was maybe isolated. Then I saw it again. And again. Ok, you got me. It goes on. I don't even really notice it anymore.

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

Without a doubt, this is almost always constitutionally flagrant. I think EVERYONE knows it happens but our local criminal justice system (often the judges included) looks the other way. As a defense attorney this is a cause for rapid aging. Do you know how frustrating it is to have both the law and the truth on your side, but it not make one iota of a difference in a courtroom? At times it makes me want to chew my own teeth.

Silently our police, prosecutors, and most judges must believe the ends justify the means. If some kid with a gun in his car gets pulled over and searched illegally, well....4th Amendment, schmendment....it's a gun off the street. And what we want are arrests and a full prison system, right?

The police need to make our streets safer. Removing guns and drugs is a huge part of the solution. I don't like guns or drugs. Make them all evaporate as far as I am concerned. But there's this whole 4th Amendment thing that sometimes stands in the way (or at least it should). I think police see it as an annoyance rather than as a reason to pause. And the willingness to break the law and follow it up with blatant perjury, makes it seem like the 4th Amendment is, at times, a joke.

If the police can pull over a car simply because some black people are in it, then the 4th Amendment is a joke.  Being black isn't suspicious. Being black in a black neighborhood really isn't suspicious. Being black in a black neighborhood and driving a car with big, shiny rims really, really, really isn't suspicious.

Illinois case law has held that an officer's mere hunch or suspicion isn't really probable cause to do anything. Obviously the police know this because black men in the hood can't seem to ever not run red lights. Or not drive cars that were built to smell like marijuana factories. Running a red light or riding like Cheech & Chong is surely grounds to pull over a car. I have no problem with that, when it's true.

No where in the original text of the 4th Amendment does it read that it's a right that doesn't apply equally to all. And I can't think of any jurisprudence that's held that a white person's 4th Amendment rights are superior to minorities. Yay for the Constitution and some wise judges.

But the reality is in our bad neighborhoods the 4th Amendment is really a gift the police can bestow on those they deem worthy and only at a time convenient to the officers. In my neighborhood, I never see the cops throwing people on the hoods of squad cars or up against walls. Thus, to my eyes it appears my 4th Amendment rights are WAY better than some of my client's.

Is this right? What pisses me off about parts of our Constitution is how brilliant it is as a document but at the same time absolutely meaningless in the streets. There's a battle going on and I am on the losing team. The government, in secret, believes that some police functions trump personal rights, like the 4th Amendment. And I am sure some citizens have no problem with the scenarios I've described here. For them, perhaps the ends do justify the means.

We on the losing team seem to think personal rights actually mean something and should apply universally. I remember being incredibly idealistic once upon a time. But being in this business has caused me to grow increasingly cynical. However, I still want justice to prevail and I fight my ass off to bring it to my clients.

At times when some folks need the protections of the Constitution the most, it's as evasive as a winning Lotto number. They look to their lawyers. They tell us they know what the police did was wrong. And we the lawyers also know that the police were wrong. We file motions. We conduct hearings. Cops lie. We lose. [Side note: not suggesting all cops lie all the time.]

Then the times comes when we have to look that client in the eyes and say "I did everything I could. Now we have to cut a deal." And in the back of my mind I am saying I am sorry you're black. And I am really sorry you're soon headed downstate for a while.

On days like this, I leave court feeling a little deflated. I go home. I slowly take off my suit. I sit down. I look at my dog and tell him about my day. He listens. Then we go running. I feel better.

The very next morning I put on a different suit and I go back to court to try this again. And somehow, despite everything that's stacked up against me, I manage to believe in my cases. Every time I have to litigate, I go into it thinking that justice is there, and that I just have to grab it for my client.

Sometimes justice is there. And I manage to grab it. The client's case is instantly flushed out of the court system by a favorable ruling. I get hugged. My hand gets enthusiastically shaken. I am even thanked. It feels amazing. The 4th Amendment has a pulse. My work is vindicated. I am reminded again why I do the job.

If ever so briefly.


Monday, May 2, 2011

Now that Bin Laden is dead....

As everyone knows, Osama Bin Laden was killed by United State's Navy Seals yesterday in Pakistan. I read that he was staying in a multi-million dollar mansion, which was attacked by the US forces. If the video I just watched of this actual residence is genuine, I don't think the word mansion is appropriate. However, he was clearly not killed in a cave somewhere in Afghanistan.

But we sort of knew he was hiding in Pakistan for a while now. Or at least we thought. From my understanding of this mission, the CIA, with help from God only knows, got a tip OBL was staying in this compound. Or maybe they knew he was going to be soon staying there. Either way, this compound became the focus point for a massive gathering of intelligence.

An operation was planned by the Joint Special Operations Command (likely). A group of highly trained US Navy Seals must have practiced this operation on a mock-up a number of times. Then they actually went in and killed him. I hear they took his body with them.

Well done all around. Osama Bin Laden is dead. The most expensive manhunt in human history is now over. We got the bad guy. And we got to kill him. According to the news, it was a US bullet fired by a US Navy Seal that killed OBL.

I am left asking an obvious question: what does the death of Osama Bin Laden change in terms of the United States? Are the Taliban suddenly going to lay down arms in Afghanistan and play nice? No. Are gas prices going to plummet below $3.00 a gallon? No. Is the US economy going to suddenly recover? No. Will you no longer have to take off your shoes before boarding an airplane? No. Is Al-Qaeda going to fold and end global Jihad? No.

I think it's great that we finally got OBL, but I don't see the need or wisdom behind such a massive celebration. I think it's misplaced. Many experts believe that OBL had little day to day operational control over Al-Qaeda. This terrorist organization is de-centralized. Small cells around the world are only joined by a common purpose, terrorism. We cut off the head of but one of a dozen or more snakes.

Obviously Al-Qaeda has a propaganda problem since they long claimed OBL was protected by Allah, thus his continued elusiveness from the US. I can't wait to see the spin on this one. But I think Bin Laden might be more dangerous dead than alive. It will be spun that OBL died as a martyr in Jihad against the great infidel, The United States. Who will join him? I am sure the line will be long.

I am sure there is going to be an upswing in global terrorists operations. Retaliation and revenge are two very compelling sources of motivation. I am no terrorism expert, thus cannot predict what's to come. But if another operation of the scope of 9/11 happens, I won't be surprised. I want to think our counter-intelligence agencies can prevent another 9/11. But I just don't know. I was stunned by what happened on 9/11. The ease in which that was pulled off was truly unbelievable.

I imagine family members of people lost on 9/11 feel some sort of vindication. People were chanting USA USA USA from the sidewalk in front of the White House. But what really are we celebrating? A man is dead. Ok, the figurehead of a violent anti-US terrorist organization is dead. One of the men behind 9/11 is dead.

I was as pissed off as any blue-blooded American on 9/11. But I immediately asked the question, "why?" It was on 9/11 that I began to really study and attempt to learn geopolitics. I had to know from where such hatred came. I had already studied Islam in college, thus I knew it wasn't a religious issue. Islam, like all formal religions, preaches peace and humility.

President George W. Bush claimed the US was attacked by people that hated American freedoms. I didn't buy it. But that claim certainly was a rallying cry that appealed country wide. But that allegation isn't any truer now than it was then.

Over time I came up with reasons why 9/11 happened. I won't share them because they are very personal opinions that are wholly my own. And while I would never condone the horrific events that occurred on that September morning, I began to understand where the hatred came from.

Osama Bin Laden was the lightning rod for the group responsible for 9/11, Al-Qaeda. Now that he is dead, does anti-American dogma disappear? Probably not. None of us really knows the state of Al-Qaeda. I am glad intelligence agencies are working non-stop to prevent further attacks. Just because OBL is sleeping with the fishes (literally) doesn't mean this is all over.

If killing Bin Laden was just, then justice was served. But I cannot bring myself to celebrate the death of another human. It's not that I don't despise the man and everything he stands for, but I don't see the need to suddenly feel patriotic because he's dead. I was just as American on Friday as I am today. And will be tomorrow.

What I fear is that, in death, Bin Laden will be much stronger and influential than he ever was alive. He's now an even bigger symbol for anti-American animus. He arguably died for his cause. And a lot of people believe his cause was just. This can be very dangerous.

To us, Osama Bin Laden was an evil terrorist, but to others he was a defender of Islam trying to rid the holy land of infidels, or non-Muslims. Thus it's easy to see how the man might be praised in certain populations, while hunted by others.

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

The absolute worse thing that could happen would be the politicization of Bin Laden's death. We don't need members of the American government on television saying "yeah, we got him and good riddance!" By rallying around this event, we only maximize the potential negative effect it could have. If we increase his significance, it could simply work against us.

The terrorists and those that want to remove the United States from the map, probably already regard Bin Laden greatly. They don't need us to justify their praise. Bin Laden was a man. Nothing more. Nothing less. His death was arguably warranted and thus just, but we need not lose the forest for the trees.

As a country, we still have a lot of work to do both home and abroad. Now is not the time to get sidetracked because the most infamous villain in US history has been served some cold, hard American-style justice.

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