The Zone

On Tuesday morning I conducted a motion hearing at 26th & California. My client is being charged with first degree murder after an alleged failed car-jacking attempt. I am not the kind of lawyer to put murderers back on the street in order to make a buck. My client, I am sure, is innocent.

I filed two pre-trial motions. My motion to quash arrest was based on no probable cause. And my motion to suppress identification was based on, what I alleged was, an unnecessarily suggestive show-up. A typical show-up involves usually just one person (who is usually in custody) being shown to either a witness or the victim of a crime. You should contrast this with a line-up as seen on TV where there are at least 5 different people for the witness to view.

I did not expect the judge to grant either motion. I doubt judges ever toss out murder cases by way of a pre-trial motion. I do believe, however, there was a basis for both motions. They were not frivolous. But I wanted the chance to get some police officers on the record testifying about the case. I don't know why I thought to do this. Perhaps I read it somewhere. A great trial attorney whom I respect characterized my strategy as "old school".

In civil cases, long before trial, numerous depositions are taken. Depositions are given under oath. There is usually a court reporter there recording everything being said. When the case finally proceeds to trial, both sides already know what the testimony is going to be. How? They have already heard it, in the deposition. 

In criminal cases, we do not have the luxury of depositions and several years worth of discovery. We get, at most, police reports, written witness statements, and very limited grand jury or preliminary hearing testimony. As a defense attorney it's easy to predict the state's theory of the case: the defendant did it. But we don't know how it will be played out at trial.

Going into yesterday's hearing, I viewed it as a lot like a discovery deposition. I wanted to know everything that wasn't in the arrest report. This meant I had to ditch all methods of cross-examination, i.e. asking only leading questions and doing all of the talking versus asking very general, open-ended questions and letting the witness talk all they want.

Example: when you arrived on scene what did you see? Who was there? What were they doing? Where did you go? What did you do? What time was it? And so forth.

There were a number of people in the very large courtroom. My client's mother and several of his family were seated. Some of the victim's family were there as well. There were also several very experienced attorneys hanging around. Add a few random people, both assistant state's attorneys, and the total number of attendees exceeded 25 or so.

For me, that's quite an audience for a motion hearing.

Naturally, I was a bit nervous as I tend to get. My palms were moist and my throat started to dry. I never want to look like an idiot in court. Not in front of the judge, other attorneys, the client's family, or the client himself.

I had three officers there to call to testify as I wished. And so I did. I knew what I wanted to get done and set out to do it. This was in one of the very large courtrooms on the upper floors at 26th & California. The jury box is enormous. The bench high. Counsel's tables are large. And the ceiling has to be at least 20-25 feet high. It's just a huge room; probably almost as big as a full basketball court.

The witness stand is on the side of the judge's bench closest to the jury box. There is no lectern, per se. But there is a piece of furniture that looks like a small wooden park bench and stands as high as the bottom of my ribs. This is from where witnesses are to be questioned.

I  called the first witness. The questioning bench was all the way at the other side of the jury box or about 20-25 feet away from the witness. It was also very close to the prosecutor's table. The bench is not really heavy, but a little awkward. I asked the judge if I could move it closer to the witness and she allowed me.

I asked to move closer for a few reasons. First, prosecutors like to chatter among themselves when I am questioning. It can be annoying and distracting if I hear it. Second, I wanted to be closer so I could really look into the eyes of the officers during testimony. I wanted to get a feel for them and attempt to gauge how confident they were about their testimony.

Getting closer to the witness also did something else. It shut out the rest of the courtroom from my awareness. It was me and the witness. I was in a zone. I was so completely locked in to what the witness was saying that I heard nothing else. It wasn't until I tendered the witness and walked to my table that I asked "where did all of these people come from?"

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First Defense Legal Aid

First Defense Legal Aid is a Chicago not-for-profit organization that provides 24 hour, free legal representation to people in the custody of the Chicago Police Department.

FDLA was created in 1995. It's creation was in response to community complaints about the treatment of those in custody in Chicago jails. I wasn't around back then but the stories are pretty horrible. I am not going to repeat anything I have heard, however, because I don't know them to be true factually. I will say, though, nothing I heard was beyond belief, knowing what I know.

By law a suspect can be kept in custody for up to 48 hours before they are either brought before a judge (after felony charges are approved) or are released. A lot bad things can happen in 48 hours in the wrong situation.


I have seen, in person and on video, the coercive interrogation techniques of CPD detectives. Having an attorney advise the suspect not to talk can avoid a lot of problems. This is especially true if the suspect is innocent. And some are. 

FDLA is staffed by two attorneys that handle calls during normal business hours, Monday through Friday. Volunteer attorneys, on a pro bono basis, are on call at all other times. A shift lasts 12 hours, either from 6:00 am to 6:00 pm or 6:00 pm to 6:00 am.

Most of the attorneys who volunteer are not criminal attorneys. I have been involved with FDLA since fall 2008. On some shifts I handle no calls. But on others it can be busy. The answering service attempts to pre-screen the caller to make sure FDLA can help them.

More often than not, the caller is the suspect's mother. Typically the suspect has been in custody for 12-24 hours and the police won't give out any information. Mothers tend to freak out when their son is in police custody and they don't know why. Or even worse, what's going to happen.

Once we determine someone is in custody pursuant to an active investigation, we go to the police station where the suspect is being held. We demand to see our client and eventually we are allowed to do so. Stating the CPD is not real nice to attorneys that show up in this manner is a slight understatement. Hostile would be inaccurate, but annoyed would not be.

Last Friday night I was called by a woman whose son was being questioned about a homicide. That's a pretty big deal. Homicide detectives are relentless.

I took the call at 8:00 pm and was at the police station shortly after 8:30 pm. It was snowing so I had to drive a little slower than usual. I announced myself at the front desk and showed my ID. The detectives were called and both came downstairs a few minutes later.

I told them I wanted to see my client. I was asked for credentials. I was told he had not asked for a lawyer. But they would tell him I was there and if he wanted to talk with me, I would be allowed to see him.

We went upstairs. My bar card and county attorney ID were photocopied. I was searched and led to the interview room. I knew the video and sound feeds inside the interview room were on and being recorded. All homicide interrogations have to be video taped by law.

I was prepared to ask them to be turned off but I didn't have to. A third detective walked up to the machine that controls the recording system. Right in front of me he inserted the key to the box, opened it, and turned it all off. The box was closed and locked.

To my surprise, I was handed the key to the box and asked to return it when I was done talking to my client. The detective unlocked the door and told me to knock when I was done.

The door opened and I walked in. It was a typical CPD interview room. Small. Maybe 8' x 7'. No windows. White walls with crap written all over them. A huge metal ring protruding from the wall where handcuffs can be attached. And a 12" wide metal bench attached to the rear wall. It doesn't run the entire span of the wall and couldn't have been quite 6 ft in length. That's it. No chairs. No table. No toilet.

You can also not turn off the very bright light from inside the room. And the smell was beyond description.

Sitting on the bench was the very tired looking client. He had been in custody for about 41 hours. I introduced myself and told him I was contacted by his mother. I told him the video feed was turned off but I still didn't want him to discuss anything with me.

He was advised not to speak with detectives after I left. At that point, I assured him there was nothing he could tell them that would help his situation. By then, they either had a case or they didn't. He understood. My entire conversation with him took about 10 minutes.

I knocked on the door. Within seconds it was opened. I stepped out. I told the detective there was to be no further questioning without my presence. My business card was handed to him and I said "I know how this works. You either have a case you can get through felony review or you don't. You're getting close to 48 hours, aren't you?"

He nodded. This detective was about as pleasant a cop I have dealt with. He was professional but looked frustrated and a little tired. I thanked him for his cooperation and left.

The client was released early Saturday morning without charge.

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Melendez-Diaz Upheld by Supreme Court

Last summer the U.S. Supreme Court created a stir in the criminal justice system. In Melendez-Diaz v. Massachusetts, petitioner challenged the admissibility of laboratory certificates prepared by a crime lab employed to test and analyze seized cocaine. In Illinois, the State Police crime lab does such work. Long story short, the prosecution was putting lab reports into evidence and not calling the actual technician to testify about what was in those reports.

I had yet to run into this, but that sounds like a hearsay document to me.

But apparently this practice has been going on in many jurisdictions for a long time. In this case the challenge was brought based on the 6th amendment's right to confront witnesses against you. This is also referred to as the Confrontation Clause.

The Supreme Court agreed with petitioner Melendez-Diaz and reversed his conviction. The split in the court was quite interesting. The final vote was 5-4. Justice Scalia wrote the opinion for the majority. He was joined by Justices Stevens, Souter, Thomas, and Ginsburg. The dissenting opinion was written by Justice Kennedy and joined by Chief Justice Roberts, Breyer, and Alito.

That is a very strange split.

Melendez-Diaz was decided before Sonia Sotomajor was seated on the court. There was speculation Melendez-Diaz might be overturned since Justice Souter retired.

Briscoe v. Virginia was the case some thought would reverse Melendez-Diaz. The issue in Briscoe was whether or not the burden could be shifted to the defendant to call the state's lab personnel as a defense witness. And if the defense does not call the witness, does that remove the state's obligation to present the witness for cross-examination?

It appears as though the holding in Melendez-Diaz is firmly entrenched. The court authored a one page decision in Briscoe, vacating the decision of the Supreme Court of Virginia. The case was remanded for proceedings consistent with Melendez-Diaz.

We in the defense bar loved Melendez-Diaz and especially in light of the recent National Academy of Sciences scathing report of forensics.

I was at a death penalty litigation seminar in late October. One of the speakers, Marvin Schechter, was on the committee that interviewed scientists in numerous fields from all over the world and wrote the report. Mr. Schechter was a very engaging speaker, New York accent and all.

It was at this seminar that I first learned of the NAS report and the problems with crime labs and forensics in general. I had no idea it was all such a mess. 

The message to defense attorneys is clear. In light of the NAS report and the holding in Melendez-Diaz, we should be objecting to admission and vigorously challenging scientific evidence whenever possible.

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Habeas Corpus and Guantanamo

The writ of habeas corpus has been around over twice as long as the United States has been a sovereign nation. It's origin can be traced back to England. Today, many countries around the world have something similar to habeas in their justice systems.

A habeas petition is simply a way for someone being incarcerated to have his jailer brought before a judge to justify his detention. I am not a habeas scholar. But the history of the writ in the United States is interesting, to me anyway. To me, habeas is an extraordinary, seldom granted last-ditch effort to make sure the petitioner got their day in court. And the correct court. 

I am currently reading a book titled "The Guantanamo Lawyers." Most Americans, and I am sure many lawyers too, never really understood what was going on at Guantanamo Bay detention center in Cuba. We were told the "worst of the worst" captured during the on-going war on terror were being held there. That's what we were told.

What most of us didn't know is that very few of the detainees were captured on a battlefield. We also didn't know that the vast majority of them were sold to us by countries like Pakistan. We were not told they were being held without being charged of any crime. We were also not told they had no right to an attorney. And most egregiously, we were not told the detainees had no access to any type of hearing to determine anything, let alone criminal liability.

From a legal perspective all of these bad guys were in legal limbo. The Bush administration's lawyers created the term "enemy combatant". And on advice from these same lawyers, President Bush decided the United States could do anything we wanted to with anyone labeled as such. The policy was put into effect and no one created much dissent.

Under President Bush's authority such people were denied the right to a hearing of any kind, the right to be made aware of any criminal charges they faced, and the right to an attorney. Every criminal defendant in the United States has the absolute right to all three of these.

Here is a little background to help my post:

In January 2002, when the first detainees were brought to Guantanamo, I was still an undergraduate student at the University of Texas at Austin. Like everyone else, I was very upset on 9/11. And I even supported military action in Afghanistan.

We were told the Taliban let Al Qaeda operate and train within Afghanistan. The Taliban regime wasn't really recognized as an official government, it was oppressive (especially to women), and they wouldn't turn over Osama Bin Laden at President Bush's demand.

Thanks to the media and post 9/11 hysteria, the Taliban were quickly demonized. It was repeatedly asserted by numerous members of the government and media, the Taliban were indirectly involved in 9/11. Some even claimed the Taliban knew well in advance of the attacks.

Like most Americans, prior to 9/11, I didn't know a Taliban from a telemarketer. But, also like most, I bought what was being sold through the media. 9/11 pissed me off. 

And so the United States joined efforts with the Northern Alliance to overthrow the evil Taliban. The Northern Alliance was a scattered bunch of small military factions, ran by war lords partly financed from the sell of poppy. Poppy makes heroin in case you didn't know. So, illegal drug trafficking is one way the Northern Alliance financed themselves.

The United States has a history of overlooking the wrongdoings of our allies. As long as you're against the same people we are, well, you're ok with us. My enemy's enemy is my friend. Remember our support of Iraq during the Iran/Iraq war? And then a few years later we turn around and claimed the same guy we said was a good guy, is actually a bad guy whose government we should overthrow. Was Saddam Hussein ever a good guy? As long as he was killing Iranians he was. I digress.

The CIA sent a couple of teams into Northern Afghanistan well in advance of any uniformed soldiers. These teams were armed with cash. And millions of dollars of it. The CIA officers bought allegiance from the various war lords. Even though most of these guys didn't like the Taliban, they wanted paid to help the American effort. And we paid them. But I doubt we got receipts.

We know what happened next. Bombs started hitting the dirt. Soldiers landed. And after about 2 weeks the Taliban was dethroned. This was all on TV in case you missed it. Now the US Military is running the country and looking high and low for Bin Laden.

Pakistan, the only country on the planet to recognize the Taliban as the official government of Afghanistan, began selling us "captured" bad guys. And we bought them for millions of dollars and flew many of them half way around the world to Guantanamo Bay, Cuba. Apparently we never bothered to verify that some, if not most, of the bad guys were actually bad guys before we cut the check.

I remember the first video images of prisoners at Guantanamo. They were in orange jumpsuits and were housed outside in what looked like dog cages. Most Americans didn't care about the dog cages. Terrorists want to kill everything American. Dog cages aren't so bad. However, human rights activists went nuts and eventually they were moved inside.

But I, like most everyone else, had no idea of their legal status, or lack thereof. And though I was starting to distrust the Bush administration, I still bought the story the "worst of the worst" were at GTMO.

It didn't take long for some attorneys (not just Americans) to figure out exactly what was going on down there. Thus, began the fight.

In early 2002, the Center for Constitutional Rights filed two habeas petitions on behalf of two detainees at GTMO. The petitions were denied by a federal district court on jurisdiction grounds. Cuba wasn't the United States. The appellate court affirmed. Over the Bush administration's loud objections, the U.S. Supreme Court agreed to hear the case in late 2003. Oral arguments were held in the spring of 2004 and the decision came down in June 2004.

Rasul v. Bush held that the GTMO detainees did have habeas rights and therefore access to federal court. The U.S. Supreme Court rejected the Bush administration's bold assertion that it could run a prison with no judicial oversight, even in Cuba.

A Republican majority congress responded.

The Military Commission Act of 2006 stripped habeas rights from non U.S. citizens that were determined to be enemy combatants or were awaiting a hearing to determine same. 

Combatant Status Review Tribunals were created to determine if a detainee was, in fact, an "enemy combatant." If one was an enemy combatant, then per the MCA, they had no habeas rights.

The rules governing such reviews (I can't bring myself to call them hearings) were unlike anything seen in the United States. The rules of evidence didn't apply and the government's evidence was presumed to be genuine and accurate. And many didn't have attorneys. Given such a system, however, I am not sure what good having an attorney would have done.

The Guantanamo lawyers didn't give up, however. A case challenging almost everything about Combatant Status Review Tribunals made its way to the U.S. Supreme Court.

In 2008, a 5-4 majority in Boumediene v. Bush held that detainees at Guantanamo were entitled to protections of the United States constitution; enemy combatant or not, they had habeas rights. Writing for the majority, Justice Kennedy wrote that the MCA was an unconstitutional suspension of the writ of habeas corpus. If you're into constitutional law, the decision makes a nice read.

As an attorney, reading the "Guantanamo Lawyers" is shocking because other American attorneys actually legitimized the stripping of the detainees legal rights. I am actually ashamed. And as an American, these same actions go against everything I was raised and trained to believe was great about my country. 

I feel honored, however, to call myself an attorney in the same vane as the small dedicated group of lawyers that fought like hell on behalf of our constitution. And I am pleased the United State Supreme Court did the right thing in the end. I wish the decision would have been unanimous, but 5-4 works for me.


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Plain View

In my practice, I regularly handle cases where  the 4th Amendment right against unlawful searches and seizures was implicated. Or in some cases I argue it should have been implicated. My use of the word "implicated" means that the right either was or should have been in effect at some point.

Most people know 4th Amendment basics. The cops can't bust down a door and search the house without a warrant. Also the cops can't arrest someone 'willy-nilly'. This is where probable cause comes in and that's very messy and complicated.

The "plain view" exception to the 4th Amendment was judicially created. The most often cited case for this proposition is Coolidge v. New Hampshire. The exception is pretty basic: when a law enforcement officer is able to detect something with one or more of his senses, while lawfully present in a position to use those senses, any detection does not constitute a search under the 4th Amendment.

In plain English: if the cop has a legal right to be there, anything he sees is fair game. Traffic stop, search warrant, etc.

I have been witnessing and hearing about a lot of cases where local police make a routine traffic stop and just happen to see contraband in plain view. Guns on passenger seats, drugs in open bags on the back seat, and so on. How incredibly fortunate.

The 2009 U.S. Supreme Court case, Arizona v. Gant , stopped cops from searching vehicles after giving traffic citations, generally. I had a case last year where my client was arrested for driving on a suspended license. He was removed from his car and placed in handcuffs. The cop searched the car and found less than 1 gram of cocaine under the driver's seat.

When I got this case, Gant hadn't been decided yet. Up until Gant, vehicle searches following arrests like my client's were valid. Gant changed that and I filed a motion to suppress and cited Gant. This was a perfect Gant motion. This was exactly the type of case Gant was meant to address.

At the suppression hearing, the arresting officer testified the cocaine was in plain view. What? The arrest report didn't read it was in plain view and the officer did not testify at the preliminary hearing it was in plain view. I impeached by omission and prior testimony. The judge sided with the officer ruling Gant was inapplicable due to the plain view exception.

I was not thrilled. And now all of these plain view arrests are a daily occurrence. Coincidence? I wrote last fall that inventory searches would be the end run around Gant. I didn't anticipate contraband would start popping up in plain view all over the place. Silly me.

The other common theme is the furtive movement made while the officer is walking up to the car. Furtive. Such a cop word. Like tendered. "Suspect tendered unknown amount of US currency for a clear plastic bag containing a white powder, suspect heroin." I have heard that exact sentence more times than I can count.

I guess in Chicago, the bad guys aren't smart enough to hide things they know they shouldn't have. Or if they do hide something, they wait right until the cop is looking in the window to do so.

That's how it happens around here. Well, that's the story anyway.

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Sweet Dreams Are Made of...

For some time I have been having a sleeping problem. And when I do sleep I have very violent dreams that usually center around drugs and guns. In my dreams I am often the drug user or the person with the gun. But for some reason I can never fire a gun in a dream. It always malfunctions like the trigger doesn't work.

These dreams are very real. But, I can sometimes recognize it's a dream during the dream. I have had horrible nightmares where in the dream I am hoping it's a dream. They are so vivid and graphic that I often awaken feeling exhausted. That kind of sucks too.

Some people have Alice in Wonderland dreams. Some people dream of loved ones, dead and alive. Some people dream of their past. I dream of violence and despair. Many nights when I wake up from my dreams I write down a little bit about the dream.

In the morning I try to read my scribbling and make sense of it all. At times I think I am going mad because of all the violence I dream of. I am starting to think something organic in my brain changed permanently and I will never again be normal. This assumes I was ever normal though. 

But last night my brain took a vacation. Sort of. The following is what I was able to remember this morning by piecing together my notes from last night. Here goes (I am not making any of this up):

I was in the military again and my unit was going to the field. I was still wearing a suit and felt rushed because everyone had already geared up and was ready to go.

The interesting part is that my unit wasn't going to the field and my unit wasn't like my old Army company. Instead I was part of the Star Wars rebellion and the field was all of space. At some point I realized I was in the Death Star preparing for battle with the evil Empire.

All of the rebel forces around me were running. On my notepad I wrote they were hiding, which is odd. Rebels fight, not hide. Maybe they were setting up an ambush. I don't know.

Now here is where it gets weird. I didn't see Darth Vadar in my dream. In fact, none of the characters from any of the 6 Star Wars films were in the dream. Well, except one. Who was it? It was none other than Boba Fett, the baddest ass bounty hunter in the galaxy. In case you forgot, Boba Fett delivered a carbon-frozen Han Solo to Jabba the Hutt. "He's no good to me dead" Boba said to Lord Vadar as Han was removed from the carbon freeze as solid as a asteroid.

I am not a Star Wars fanatic. I just happened to be the right age when Episode IV was released back in 1977. I had some action figures. I even had a Millennium Falcon. And for a while I wanted to be a Jedi when I grew up. Hell, I still do. Jedi's kick ass. If I could move objects by just pointing at them, I wouldn't need to practice law. Would I?

In my opinion the first two movies were the only ones that mattered. Return of the Jedi was full of forested muppets. Eh. The three recent films, while nice to look at, just didn't have the "umph" the first two did. Yeah, watching Yoda fight with a light saber was nice. And Darth Maul was a pretty solid villain. But I couldn't swallow Ewan McGregor as a young Obi-Wan Kenobi. And that little kid that played Anakin Skywalker was too damn cute to grow up to be Darth Vadar, the blackest brother in the galaxy. No way.

And there I was in my dream, running past Boba Fett. Yes, running past him. I wasn't scared of him either. And that's probably because in my dream he was shorter than me. Yep, even with the helmet on, Boba was probably only as tall as Tom Cruise.

The question I have is: in the dream which side was Boba Fett on? The Rebellion or the Empire? He had no loyalty. He was motivated only by money. And why of all the characters in all 6 films, was it Mr. Fett that made an appearance?

If that was my subconscious self telling me that in reality I am just some short, money-hungry, hired gun with no loyalty...I am guess I am screwed.

You May Be Sentenced To Death if....

Illinois is a death penalty state, one of thirty-five. Former governor George Ryan placed a moratorium on executions in 2000. After leaving office, he was convicted in federal court for various corruption-related crimes. Inmate Ryan is currently in a federal prison in Indiana. But that's besides the point. In 2003, before leaving office, he commuted every death sentence to life without parole (167 total), thus clearing death row in Illinois.

1,193 people have been executed in the United States since 1976, and Texas accounted for 449 of them. Illinois only killed 12. Virginia is second only to Texas with 105 executions. Together, Texas and Virginia account for almost half of all American executions since 1976.

Executions are so regular in Texas they usually don't make the news, unless for some reason it's stopped. I lived in Texas from 1998-2002. During that time 145 people were executed. I don't remember hearing anything special about even one of them.

Executions also have a regional trend. 985 of the 1,193 (83%) were executed in the South. The Midwest accounted for 137 (11%) , the West 67 (6%) , and Northeast a meager 4 (.003%). When I look at these figures I can't help but see the huge American map on presidential election day where states are marked either red (Republican) or blue (Democrat) as poll results come in.

The South is almost entirely red states. While Florida can flip-flop, generally the rest of the rebel states are always red. Generally. The West and Northeast are typically blue and the Midwest is usually split. And the execution numbers clearly show, red states execute way, way more people than blue states. I am not going to make a political statement.

Illinois is sort of strange. Chicago, for the most part, is blue. The rest of the state is red. More often than not we have a Republican governor. The last one is in prison. His Democrat replacement, Rod Blagojevich, might be heading there himself. But I know Rod's lawyer so I doubt it. He's really good.

After the Ryan commutations, a lot of anti-death penalty advocates thought the Illinois legislature might take the death penalty off the books. They were wrong. 

Since 2003, ten people have been sentenced to death. I think the execution moratorium is still in place, so the legal status of those sentenced to death is probably complicated. And no one has been executed in Illinois since 1999.

Tonight I was reading the Illinois homicide statute, 720 ILCS 5/9-1. Yes, my life is so lame that I sit at home on Saturday nights and read statutes. I was amazed at how many aggravating factors are listed that, if proven, make the case death penalty eligible.

Here they are (I am going to cut out a lot of the extra words for the sake of clarity):

1. Victim was a police officer or fireman. 2. Victim was an employee of the Department of Corrections. 3. There were 2 victims, i.e. double homicide. 4. Murder was the result of hijacking airplane, bus, train, or ship. 5. Defendant was hired to kill the victim, i.e. hit man. 6. Defendant killed victim while committing another felony. 7. Victim was under the age of 12.

8. Murder done to prevent victim from testifying in court or participating in an investigation. 9. Murder committed while Controlled Substances Act was violated. 10. Defendant was in prison when murder occurred. 11. Murder was conducted in a cold, calculated, and premeditated manner. 12. Victim was a paramedic or other emergency medical technician.

13. Defendant is a drug kingpin. 14. The murder involved torture. 15. The murder was a drive-by shooting. 16. Victim was 60 years of age or older. 17. Victim was disabled. 18. Victim was volunteering doing community policing. 19. Victim had a protective order against the murderer. 20. Victim was a teacher on school grounds. 21. Murder was related to terrorism.

Those are the official aggravating factors. If even one is present, the state can seek the death penalty. In Illinois, one has to be a member of the capital litigation bar to defend a death penalty case. Apparently the Illinois Supreme Court got tired of dealing with death penalty appeals where there had been severe ineffective assistance of counsel. Now, there are standards one has to meet to defend a death case.

The requirements are not too lengthy. Basically the lawyer must have 5 years criminal litigation experience, tried at least eight felony cases of which at least two were homicide cases, and have attended a 12 hour seminar dedicated to death penalty litigation.

Often private lawyers are appointed by the court to defend a death case. The Illinois Capital Litigation Bar is not that large. I doubt there are much more than a few hundred lawyers in the state that are certified. I estimate there are about 80,000 licensed attorneys in Illinois. So, it's a select crowd.

Appointed lawyers are supposed to be paid out of the Capital Litigation Fund and have to submit billing, receipts, budgets, etc. An appointed attorney told me earlier this year that Cook county owed him $60,000 for a case I watched him lose. Ironically, by the end of the case, the state's attorney had "de-deathed" the case. What this means is that the state decided not to seek the death penalty after all. I wonder if he has been paid?

If the defendant doesn't have or is not assigned private counsel, two public defenders are assigned to defend the case. The court also makes money available for the hiring of experts. Cook county assistant public defenders assigned to death cases are highly experienced, seasoned members of the Homicide Task Force.

Though not yet qualified by experience, I attended the 12 hour seminar last October in Springfield. The seminar has to be attended every two years to remain certified and it's held twice a year. Once in Chicago, and once somewhere downstate. Last October, the downstate program was in Springfield, my hometown.

It was a fantastic seminar and I learned a lot. I saw a lot of attorneys I recognized from Chicago and took the time to formally introduce myself to a few of them. I like the old school guys that have been doing the work since I was playing baseball in Little League. Likewise, when I was in the Army, I had a deep affection for the Vietnam vets. And I am proud to have served with the last of them before they retired. I guess I feel the same way now. Often in awe, always humble, and extremely respectful.

I was amazed to learn just how much work goes into a death case. A death penalty trial has three phases. Phase one is guilt/innocence. Phase two is eligibility, where the jury determines if an aggravating factor was present. And phase three is the actual sentencing phase.

There was recently a death penalty trial in Chicago. It was related to the slaying of seven employees of a Brown's chicken in Palatine in 1993. The case was known around the courthouse as "Brown's chicken." One person was tried and convicted a long time ago. The 2009 trial was for the co-defendant, James Degorski.

Voir dire (jury selection) took one week and they even worked on a Saturday. The guilt/innocence phase took about a month (he was found guilty), death eligibility only took one day, and the sentencing phase lasted three weeks. Looking at a calendar, voir dire started around August 10, 2009 and the jury decided not to execute him on October 20, 2009. Two jurors saved his life. The other ten wanted him dead.

The death penalty is a polarizing issue, much like abortion. Oddly enough, most anti-abortion folks are pro-death penalty. A guess a life isn't a life after all. Again, not going to get political. Or God forbid, religious.

Not that anyone cares, but I have no fundamental objection to the death penalty. Some people just deserve to die...assuming they're guilty. And therein lies the rub, it's not a 100% accurate system. And it never will be.

The statistics of those exonerated and saved from death row cannot be ignored (about 139). The Innocence Project has done some very outstanding work. This highly dedicated group has freed not only those condemned, but many serving life with no parole. Kudos. Keep fighting the good fight. It needs to be fought.

So while I support the death penalty in principle, I cannot do so in practice. It's a punishment for which no margin of error can exist in its application. History has shown that it does. And that's where I draw the line.

www.schantz-law.com

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