Why The Death Penalty Should Be Banned

The concept of being killed as a form of punishment has been around for a very long time. Individual societies have their own standards when it comes to deciding who deserves to be put to death and who deserves to live. In the United States, the death penalty is a state issue. Thus, each state can decide which factor(s) surrounding a crime have to be present before the death penalty option is triggered.

I don't claim to know the very large case body that covers the death penalty in the United States. Since it's a state issue, there has to be a long history of jurisprudence state by state. However, there are a couple of very important federal cases to be aware of.

In 1972, the U.S. Supreme Court banned the death penalty in Furman v. Georgia. In that case, the Supreme Court decided that imposition of the death penalty was cruel and unusual punishment in violation of the 8th and 14th Amendments. After this ruling, no state carried out a death sentence.

Following the decision in Furman, several states amended their statues to comply with the court's holding. And after their laws were changed, they again began allowing the death penalty to be imposed, but there were no executions. But this wouldn't last long.

In 1976, in Gregg v. Georgia, the Supreme Court decided that the death penalty wasn't always cruel and unusual punishment. Furthermore, the framers of the Constitution were ok with the death penalty, and it had been part of the American criminal justice system since the country was founded [read about Stare decisis].

The Gregg decision, like Furman, consolidated several cases all with the same issue. In Gregg, the Supreme Court held that the states of Georgia, Texas and Florida had constructed death penalty statutes that abided by the constitution. However, North Carolina and Louisiana's death penalty statutes still violated the rights of the condemned because they had certain crimes for which, if convicted, the death penalty was mandatory.

It was also as a response to Furman that the bifurcated trial system came into existence for death cases. What this means was that a death case had two phases of the trial. The first was guilt/innocence (like a regular trial) and the second was for sentencing.

Georgia, Texas and Florida shared some commonality when determining who could be eligible for execution. Killing a cop, hiring a hit man, or committing murder while trying to escape from prison triggered the death penalty option in all three states but in different ways.

Following Furman, Texas narrowed its class of crimes for which the death penalty was an option. It created an objective guide for determining who could be charged for capitol murder, which simply means Texas intends to seek the death penalty at trial. Following a conviction for capitol murder, the jury then had to determine if special circumstances were present.

These special circumstances were, whether the crime committed was deliberate and with the intent to kill, whether the defendant would be a threat to society in the future, and whether the defendant's response to any provocation was unreasonable. If the jury found all three special circumstances to be present, death was automatic. If any were missing, the sentence was life without parole.

If you think about the special circumstances in the Texas model, it's easy to see why so many people have been sentenced to death and executed in that state. Special circumstance 1 is really a no-brainer. So is number 2. And number 3 wasn't applicable to all cases. Essentially, in capitol cases, all the state had to do was convince the jury the murder was deliberate with the intent to kill and the defendant would always remain a danger to society. This is a pretty low standard.

To this day, Texas still uses the special circumstances inquiry to determine sentencing in capitol cases but one rule has changed. The original number 3 has been replaced by a circumstance pertaining to a defendant that was convicted along with at least one other defendant. The inquiry was whether or not the defendant actually caused the death or intended that death would incur when helping commit the crime.

In Georgia, once a guilty verdict was rendered, the jury would then determine if the case was death penalty eligible by determining if any aggravating factors were present. An aggravating factor is simply something written into the law which could make a case death penalty eligible if present, such as killing a police officer. If the jury decided a defendant was eligible for the death penalty, it was allowed, but not required, to weigh any mitigating evidence against the aggravating factor(s).

You might ask what does mitigation mean in this context? Mitigation in a death case is any reason why the newly convicted should be allowed to live as opposed to killed. Examples are but not limited to: if the defendant was a victim of extreme childhood abuse, had a history of mental illness, or really had been a good person but made a bad choice. But keep in mind, under the Georgia system, the jury did not have to consider any mitigating evidence, and the Supreme Court held this constitutional.

The Florida system was similar to Georgia's, but in Florida, the jury had to consider any mitigating evidence. Another difference from Georgia was that the jury's determination about whether or not the defendant should be executed, was only a recommendation to the judge, who ultimately sentenced the defendant.

Since 1976, Texas has executed 478 convicts. Next in line is Virginia with 109 executions. In 10th place is South Carolina with 43 executions. In order, the top 10 states in total executions are Texas, Virginia, Oklahoma, Florida, Missouri, Alabama, Georgia, Ohio, North Carolina and South Carolina. Except for Missouri and Ohio, all of these states were part of the confederacy during the civil war.

Those states, by and large, have disproportionately executed blacks and arguably for racial reasons. Our country as a whole has a very disturbing history when it comes to racism. But it has always been worse in the south. I can say with 100% certainty, that racism is still very alive in the city of Chicago. But that's for another post.

The reasons for opposition and support of the death penalty varies greatly. Some see executions as immoral. Former Supreme Court justices Brennan and Marshall felt that all executions violated the constitution. Some oppose for religious reasons but some also support for religious reasons. But almost everyone has an opinion on this topic, much like abortion.

Prior to the last few years, I hadn't given this topic much thought. In other words, I hadn't done any critical thinking on my own. I lived in Texas for 4 years and executions were so regular, they never made the news, unless for some reason, the execution was stayed. But I was in college at the time. Thus, I was quite removed from this issue.

However, since returning to Illinois in 2002 to attend law school, things have happened that have made me acutely aware of the death penalty. In 2000, George Ryan, then governor of Illinois, put a moratorium on executions in Illinois. Since 1976, Illinois has executed 12 people on death row. However, 20 people were actually released from death row for various reasons. Governor Ryan was faced with the fact that the death penalty system in Illinois was horribly broken. He called a time-out and declared there would be no more executions until the system was fixed.

Ryan's interest in Illinois' death penalty largely arose over the case of Anthony Porter, who spent 15 years on Illinois' death row. A group of journalism students from Northwestern University uncovered evidence that proved Porter's innocence. He was eventually exonerated and released from prison and another person ended up confessing to the crime for which Porter had been convicted.

The fact that a group of undergrads righted this wrong was obviously troubling. The entire Illinois criminal justice system, which is supposed to keep the innocent from being convicted (let alone being sentenced to death) had allowed this to happen. From the local police department to the state's attorney's office to the defense attorneys to the trial judge to the appellate court and to the Illinois supreme court, this innocent man was scheduled to be killed.

No matter your view on the death penalty, I don't think anyone is comfortable with the idea of an innocent person being executed. Governor Ryan convened a committee to look into the matter. The committee uncovered significant problems and recommended changes. But the changes were never implemented. In response, 2 days before leaving office in January 2003, Ryan commuted everyone's sentence on death row to life without parole.

However, the death penalty was still in Illinois law. Thus, state's attorney's offices throughout the state kept seeking the death penalty and, in some cases, got it. In fact 15 people were on death row when Governor Quinn signed into the law the death penalty ban in March 2011.

My objection to the death penalty isn't on moral or religious grounds. I didn't have a problem with John Wayne Gacy being executed. My objection is simply this: the death penalty is an extreme punishment for which no margin of error can be allowed to exist in its imposition and it's been proven time after time to be subject to just that, or worse.

It's one thing for an eyewitness to mistake identification. That's bad enough. But when the police and/or the prosecutors break the law in bringing about any conviction and especially one that ultimately results in a death penalty being imposed, that's something that we cannot tolerate.

Police and prosecutorial misconduct are not a rare or isolated phenomena. In fact, it's a common occurrence. In death cases, it's just more magnified because it seeds the idea that someone was wrongfully convicted and sentenced to death. I think this would bother anyone if confronted.

If you want to learn about a case of extreme police and prosecutorial misconduct, read about Randall Adams. Adams was convicted and sentenced to death in Texas in 1977 for the murder of a police officer. The U.S. Supreme Court later ruled that jury selection in his case violated his rights.

Instead of re-trying Adams, the Dallas district attorney convinced the Texas governor to commute Adam's death sentence to life without parole. Clearly Adams didn't like this and appealed to the Texas Criminal Court of Appeals (the highest state court in Texas), who ruled since the Governor had commuted the death sentence to life, there was no longer any error. I can't say that I really understand the rationale behind this decision.

Adams later filed a state habeas petition again with the Texas Criminal Court of Appeals. This time something didn't look right to the justices and they ordered that the trial court conduct a hearing on the petition and make findings of fact. This time, however, it was a different judge at the trial court level. In 1989, based on the factual findings from the habeas hearing, the Texas Criminal Court of Appeals reversed the conviction and after 12 years, Adams was freed.

The rationale behind the reversal was largely, if not entirely, based on extreme prosecutorial and police misconduct. The court determined that the prosecutor had withheld key evidence from the defense, suborned perjury, and lied to the trial judge. Pretty bad stuff. The prosecutor left the Dallas D.A.'s office in 1981 and set up a private practice in Dallas. However, he testified under oath at the habeas hearing, where he continued to deny any wrongdoing. The appeals court didn't buy it, however.

On top of the shenanigans the prosecutor pulled in order to convict Adams and get him sentenced to death, he goes into court later as a witness in the habeas hearing and according to the findings of the trial court, committed perjury. According to the Texas State Bar, he is still practicing in Texas and has never had any disciplinary action taken against him.

There was a documentary made about the Adams case while he was still in prison called "The Thin Blue Line". Errol Morris created the film and it was released in 1988. It's a very engaging piece of film and I'd recommend it to anyone interested in the death penalty and/or other issues mentioned in this posting.

Adams is but one case. But since 1976, there have been 140 death row exonerations in 26 states. Those are 140 people that were improperly sentenced to death. This doesn't mean that only 140 people were wrongfully sentenced. Who knows how many others were already executed or how many are still on death row that are actually innocent. But the point is that based on what we already know to be true, innocent people have been sentenced to death and some even executed. Thus, the death penalty is not perfect and absolutely must be.

However as long as humans are involved, it will always be subject to error both unintentional and intentional. How would you feel if you were sitting on death row for something you didn't do? And how angry would you be if the government had violated your rights to put you there? I can't really imagine what that would feel like.

When it comes to innate American concepts such as liberty, fairness, and due process, the constitution is a brilliant document. Unfortunately, since it was adopted and put into use over 200 years ago, much of it that deals with criminal justice, just looks good on paper these days. I have handled too many cases where the constitutional rights of my client simply vanished due to police and/or prosecutorial action or inaction.

The government should be the body most concerned with abiding by the constitution. But too often it's the body that cares the least and at times, acts as if it doesn't even exist. A government founded upon a constitution can never be just if it doesn't follow it. We citizens have to follow the law at all times. We are not able to pick and choose when we want to. Or what laws we want to obey.

If we don't follow the law, we are subject to prosecution. This is where the criminal justice system lies. And sadly, we are all subject to what happened to Randall Adams. But what about when the government breaks the law when we are prosecuted? Well, they are mostly immune because of their position and rarely are punished. But at the end of their violations of individual rights are innocent people that have been convicted and, in some cases, executed.

The constitution was created to prevent a tyrannical government. And if followed, it can accomplish just that. But if not followed, the thing that it was written to prevent, can run wild and unchecked.

Tyranny. Bad for everyone except for the tyrannical.


www.schantz-law.com

Twitter

Playing Catch Up

Just yesterday, I realized I hadn't written a blog post since September. Every now and then, I do a Google search of my name just to make sure nothing false has been written about me. I am not paranoid, but an attorney is only as good as his reputation. To date, there's been no internet grenades thrown my way. I do always find it odd the corners of the internet where my name or something I've written pops up.

While Google hunting myself, I did find that I was mentioned on Scott Greenfield's blog, Simple Justice. Apparently I was nominated in December of 2011 for Criminal Law Blog Post of The Year by Mark Draughn of Windypunidt. I don't know Mark personally. We've never met. Somehow last year he learned of my blog and threw me a salute on his blog. I was not aware of this until I was informed by a friend. I know I sent Mark some appreciation for his kind words.

Scott Greenfield goes on to spread some niceness my way when he discusses some of the 2011 nominations. I like that Scott also considers 40 years of age to be 'young'. I also appreciated that I was considered for the award. However, the winner was Mark Bennett, a Houston Criminal Defense Attorney. Here is the winning blog post. I've never been much for reading blogs of any kind. I simply don't have the time. Even my Twitter activity has been reduced significantly.

In part, I wish I could blame my busyness on work. But it wouldn't be true. I am busy with life in general. My case load is actually pretty light and has been for over a year. However, the cases I do have are not simple guilty pleas waiting to happen. Nope. I remember those days when most clients had crap cases and chose to plead at the arraignment. I didn't earn a lot per case, but I had a ton of them.

For whatever reasons, at some point I stopped getting hired to negotiate plea deals but was actually retained to litigate cases that needed it. I remember back in the spring of 2009 (my first year doing this), someone called me on the phone and said "yeah, I heard you're a good 'cop-out' lawyer." I think I was a bit offended, but at the time, it was true. I had very litigation experience. I didn't conduct my first suppression hearing until September of 2009 and didn't try my first case until December 2009.

But what a year 2009 was. In early 2009, I was doing misdemeanor cases where I would go to court, the cops wouldn't show up, and the case would get tossed. To the worried client, I seemed like this awesome attorney and would get told as much. But inside, I sort of knew it was smoke and mirrors. To my credit, I never puffed any of that. I never told a client "see, I got your case dismissed. Love me now." No, I would just say "thank you" and walk away. I was just filling a suit and I knew it. But I also realized at the time, I couldn't do much more.

I spent so much time in the fall of 2008 and all of 2009 sitting in court and watching other attorneys conduct hearings and trials. It wasn't hard to figure out who was good and who sucked. I spent most of the time watching the jurors, noting what held their attention and what put them to sleep. I befriended the attorneys I felt were the best. And I am still friendly with them (not like it's been ages).

Though I hadn't tried a criminal case, something innate led me to believe that's what I was supposed to do.  Something told me that I would be good in front of a jury. And just 11 months into my criminal practice, I got my first shot at a jury. My client was charged with a Class X felony (6-30 years). I liked the case. I felt my client would make a very good witness. And I had enough police mess ups on the table with which to design some pretty effective cross.

Counting the day we picked the jury, it took 2 days. The jury came back in about an hour with a 'not guilty' verdict. My client cried. His mother cried. Back in the lockup, my client said "I love you". And that night, after sitting in the county jail for 5 months away from his fiancee and their three children, he went home. I am sure they all had a very nice Christmas.

Some might think I was wrong to take that case and they are welcome to their opinion. However, I wouldn't have taken that case to trial unless I felt I was fully capable of living up to my professional and ethical duties to my client. My ass might be dumb. But I ain't a dumb ass. I felt like I was ready. And I did it. All guts and glory. A little Patton-like perhaps. I never questioned my ability once and not out of arrogance. You see, I am my own worse critic. It keeps me in check.

I left the courthouse that night with a feeling like I was floating. And when I walked back into the courthouse the next morning, I felt like I was finally part of the club. In other words, my cherry had been popped. I was now one of them. One of the felony trial attorneys that have graced, or in some cases, disgraced what's locally known as 26th & California.

That building has a very long history. I admit when I first stepped inside to handle my first felony case, I was a bit awe struck. Somehow I had romanticized the Cook County main criminal courthouse. I actually wanted nothing more than to actually practice in that building. What's that saying...be careful what you wish for....Amen.

These days I see that old courthouse like a black hole that sucks in attorneys and never lets them out. It would be appropriate for a cemetery to be on the grounds where dead attorneys are buried. Yes, I am serious. On the right (or wrong) day, that place takes on a very dark character where it just feels nasty to be inside of it.

But back in the summer of 2009, Kenny Green came into my life. It was my blog posting about his case that was nominated for blog post of the year. When hired, everyone knew I hadn't tried a criminal case. No experience. But apparently I had something equally valuable to families: belief. The fact I was willing to take that case played a role as well. However, I don't think it was a large role. After meeting with Kenny and conducting some research into the case, I met with his family in the law library in the Court's Administration building that's adjacent to the old courthouse.

His family all knew what really happened and that he was not the thug that the media was describing. I am sure their biggest concern was whether or not someone else would believe what they knew to be true. At the time, I wasn't consciously aware of this. Apparently, I said the right things, because despite my lack of experience, they hired me to take Kenny's case. And Kenny, himself, wanted me as his attorney.

My unwavering belief in that case played a substantial part in Kenny's eventual acquittal. Of course, by the time the trial came around, 2 years later, I was no longer a total rookie. I am not going to claim I am some super duper experienced trial lawyer that has nothing but sage advice to shell out.

But I know how to try a case. And as it turned out, I think I am pretty good in front a jury. To contradict myself a little, there's two cardinal rules I follow when it comes to juries: never give them a reason to dislike me and never lose my credibility with them. It won't necessarily seal your client's fate, but it damn well might.

On that Friday afternoon when Kenny was acquitted, he told me he loved me. Knowing him like I do, he wasn't surprised at the verdict. For he knew he had done nothing wrong. He expected the right verdict to be given. Once upon a time, I was that naive too.

Kenny will never know the personal, mental hell his case put me through. He will never know how many nights I had trouble sleeping because I was thinking about his case. He won't know how frightened I was before that trial. He won't know of all of the anxiety and stress I took on by handling his case. He won't know that just a random thought about his case would cause my pulse to quicken, my blood pressure to rise, and make me feel like immediately vomiting. I've learned that all of that ickyness comes with the job. Or at least in my case it does.

After I walked out of that courtroom, his immediate family was in the hallway. His mother was a little teary eyed. I immediately broke down and cried. All of the emotion that had been built up in me was suddenly released. An emotional orgasm, if you will. All I could say was "thank you for believing in me and trusting me to handle Kenny's case." While hugging me, she whispered into my ear "Marcus, we always believed in you." Of course, that just brought more tears, but in a very good way.

I learned a lot through that case. I grew as a person and as an attorney. I realized that some fear is good. But too much fear can cripple. And I also learned that the belief stuff runs in both directions. There's nothing wrong with being an attorney with a heart.

That I regularly show so much of mine has bode well with some clients. Just recently one said "I'll say one thing about you Mark (that's what he calls me and I let him), you practice with compassion. You're not like most lawyers in this business."

Unfortunately, in this business, my compassionate side causes me a lot of grief. When I fail to deliver justice to a client so desperately in need of it, I always feel terrible. Despite all of the bullshit I see in the Chicago criminal justice system, there's still a palpable amount of idealism inside. Not as much as my law school days, but just enough that it still bothers me that our system is horribly broken and that, by and large, black and Hispanic citizens of Chicago don't have the same constitutional protections as I do. In fact, that still really, really, really pisses me off.

It saddens me that Kenny's trial may end up being the pinnacle of my career as a criminal defense lawyer. It was an extraordinary case. One of a kind. I was extremely invested in it. And there was a lot at stake. I was so completely unaware of that cases' magnitude, that the post-trial reactions, both good and bad, were hard to grasp and still are. I had a client with a case that needed to be tried in the right way. That's how I looked at it.

I hear from Kenny from time to time. Not too long ago, I got a text message from him that read "Happy New Year my hero!" I don't think of myself as a hero. I did my job. As expected, not much has really changed. I didn't start waking up wearing a cape. I had a nice weekend after that trial. But Monday came and it was business as usual. I won a suppression motion that week. And then lost one the following week. Up and down. Up and down. For someone that treasures stability and tranquility, I picked the worst job imaginable. Maybe I am a dumb ass, after all.

I want to take a few lines to thank a lot of people in no particular order. First off, thanks to DawnMarie White for leaving a husband in Indianapolis for a week to try Kenny's case with me pro hac vice and for damn near free. I couldn't have done it without you. Thanks to my dear friend, Annie, that stayed with me every night of the trial, brought DawnMarie and I dinner, did my laundry, went to the office store to pick up supplies for us, and kept me calm. Thanks to Mark Bennett for calling me out of the blue the day I was interviewed for the 6:00 news, and giving me advice on how to answer the reporter's questions. Thanks to all of my fellow CDL's on Twitter that shared in that win. Thanks to the bloggers that picked up this story and published it. Thanks to everyone that commented or wrote kind words. And thanks to everyone else fighting the good fight in a tireless effort to keep the constitution alive.

Epilogue 

It always amazes me at how unaware I often am of myself. A couple weeks back, I was headed to court to litigate a motion. As usual, I was nervous. I always am. It's one of the worst parts of this job. It messes with my stomach. It jacks up my nerves. It's just not something that's really nice to experience.

I wrote my girlfriend a text message, expressing my nervousness and anxiety. Her response really hit me in the forehead: "You get that way because you care. Your clients are lucky to have you." That's great sentiment and all, but is it true? I think so.

I wrote back: "The only alternative is to just go numb and not give a shit. But then I'd really suck at this job."

In a nutshell, that's who I am. All I've ever been. And all I ever will be.

I'm cool with that.

www.schantz-law.com

Belief In a Tough Case & The Trial

In early August 2009, I was called by a young woman. Her brother was in the county jail and needed a lawyer. At this point, there's nothing unusual about this caller and the problem. I don't get many personal phone calls, so when my phone rings, it's typically someone with a loved one in jail. "What kind of case does he have?" I asked. "He shot two police officers," she answered.

This was no longer a typical phone call. I think I remember sitting down.

I wasn't the first attorney she called.  It seems the other lawyers simply wanted nothing to do with this case or wanted an obscene amount of money. I was told that the family didn't have a lot of money, but clearly had a pretty big problem. This phone call came pretty early in my criminal practice. At the time, this case was beyond anything I had handled. But I admit, I was intrigued.

I asked if she knew anything about the case. She told me what she knew, which made me really interested. I told the caller I would go to the county jail and meet with her brother. I looked up her brother's information on the sheriff's website. I quickly learned in which division he was being kept.

Then I Googled his name to see if there was a news story. There were several. Here is one of them and probably the one I read first. Not that I doubted what the caller told me, but reading this made me realize how serious the situation was. A cop shooter? Christ. And I admit the picture of Kenneth Green didn't make a good impression. He looked mean. He looked how I imagined someone that shot cops would look.

Probably the next morning, I drove to Division IX of the Cook County Jail. I showed my credentials at the desk and requested to meet with Mr. Green. After a cursory pat-down, I was taken inside the jail and escorted to the approximate location of Mr. Green's deck. Of all of the divisions in the Cook County Jail, Division IX creeps me out the most. You have to go underground to get to it and it reminds me of The Silence of The Lambs, where they kept Hannibal Lecter locked up.

I was lead to a room upstairs. It had a plastic table and two plastic chairs inside of it. That was it. I saw down at the table, turned to a fresh page on my legal pad and wrote "Kenneth Green, Div IX August 5, 2009" centered on the top line.

A couple of minutes past. I sat there staring at the blank sheet of paper while wondering who was about to walk into that room. Would it be some would be cop-killing thug? I told myself even before I left for the jail that day that if Mr. Green had really tried to kill a couple of cops, there was no way I was taking the case. No way. No way. No way. Not that I don't believe such a person is entitled to competent legal representation. It just wasn't the type of person I wanted to represent.

Eventually Mr. Green walked in. I stood up to shake his hand. I quickly told him my name, that I was a lawyer and his sister called me. He said "thanks for coming to see me, I'm Kenny." He was taller than myself, standing almost 6 feet. He was thin. Not sickly thin, but definitely not the body of someone who had overeaten regularly.

We sat down to discuss his case. It was pretty clear that he had grown up in the streets. But he was nothing like his picture made him appear to be. I detected no meanness. And he was certainly no thug. He hadn't been convicted of anything, I was told. I believed him. I work with a lot of criminals. Kenny wasn't a criminal. Rough around the edges, perhaps. But nothing more than that.

By the time Kenny finished telling me what happened, I knew I wanted his case. The story in the media was incorrect, which I was coming to learn was pretty typical when it came to crime reporting. For several reasons, I believed every word that Kenny told me. It just made sense. There was nothing bizarre about it. But the question remained: would the physical evidence support his version of the story? I would have to take the case to find out. And so I did.

The arraignment was the first time I appeared in court on behalf of my new client. Even though I knew this was an extraordinary case, two things happened at the arraignment that really drove this point home. The first thing that happened was that the prosecutors introduced themselves to me. The only thing out of the ordinary with these guys is that they were very senior in the State's Attorney's office. They were so senior, I had never seen them in a courtroom. They were big wigs and both of them taller than myself.

The second thing that happened is when the judge handed me the 48 count indictment. 48 counts? Really? That indictment was so thick, one of those giant industrial sized staplers had to be used to fasten it all together. The size of the staple was enormous. But I arraigned Kenny like he was any other client, "not guilty to all counts."

When I walked out of the courtroom that morning I knew I was in neck deep. Actually, at the point, I was probably in way over my head. I hadn't tried a case yet. You may ask if it was smart or even professional for me to take the case. All I can say is that Kenny's family knew I was inexperienced and so did Kenny. But they also knew I believed in the case. Also, I was the only attorney they could afford. Since they didn't want Kenny to be represented by a PD, I was the only option. In reality, I priced myself so they could afford me. I wanted that case. 

Even though at the time, I knew I was short on experience, I never doubted my abilities as an attorney. I knew it would be a long time before the case went to trial and by the time it did, I would have trial work under my belt. That assumption ended up being correct.

Every month when the case came up for discovery status, I got more and more documents. By the time discovery was complete, this file would take an entire banker's box to contain it. For a Chicago criminal case, that's a big file. Take my word for it.

And every month, I saw the same two prosecutors. I got to know them and even grew to like one of them a lot. The other one was eventually demoted within his office and was replaced on my case by another guy I also grew to like. As it turned out, we had a somewhat common military background. But I think the State kept thinking I was going to ask for a plea deal. I don't think anyone but myself, my client, and his family really believed this case would ever see a trial.

I began preparing this case for trial on day one. I guess in the long run, that gave me an advantage. And my theory of the case never changed: my client didn't know he was shooting at police officers and the drugs found in his bedroom belonged to his brother. I would ultimately have to teach a jury that this wasn't just a theory but was, in fact, the truth. If I failed in doing so, Kenny could be gone for life.

I never lost sight of what was at stake. But at no time did I ever think about seeking a plea deal. Why? Because I believed in the case. However, because of how people think, I knew it would be a tough sell to a jury. But I also believed in my ability to tell Kenny's story in a way a jury could understand. Or so I'd hoped. Also at no time did Kenny ever mention a deal. He wanted a trial. He wanted to take the stand and tell a jury what happened.

In the late fall of 2009, I went to see where this incident took place. I took my camera and measuring tape. I took pictures and measurements. I also made sketches. While I was inside of the apartment, my passenger side window was shattered with half of a brick and my GPS was stolen. This had been the first time I ever did not put my GPS in my glove box. I mean the absolute first. I was slipping and I got caught. I blame that one on myself.

This case changed judges three times due to administrative reasons in our courthouse. This was going to be a jury trial from day 1. I didn't want to put a judge in the position of having to find someone who shot 2 cops not guilty. No, a jury trial was the only option. I just needed a good jury. I needed jurors who would do their job.

It took well over a year for the State to complete discovery. The Independent Police Review Authority (IPRA) conducted an investigation of this case as they do in all situations where the police discharge a firearm. This investigation delayed the discovery process. I also used the Freedom of Information Act (FOIA) to obtain Chicago Police Department documents that pertained to search warrants, from obtaining them through post-execution.

In the spring and summer of 2010, three off-duty Chicago Police officers were shot and killed. It was obvious a trial even remotely close to those events time-wise was a bad idea. Thus, I continued to take my time but didn't intentionally delay.

The case was originally set for trial in April 2011, but the State wasn't going to be ready. It was rescheduled for June 2011, but I couldn't get ready. The trial was again rescheduled for August 2011. The judge firmly said "unless one of the attorneys dies, this trial is going in August." I took her for her word.

I also knew I was going to need help with this trial. I needed a 2nd or 3rd year law student at a minimum. There was going to be a lot of exhibits and I wasn't going to have time to keep track of them. I was also going to need help during final trial preparation. I needed someone to constantly test and challenge my theory of the case as we discussed the evidence.

I had a 3L that said she wanted to help. She would have been allowed to sit at counsel's table during the entire trial. It would have been great experience but she pulled out suddenly 2 weeks before the trial. Shit. I started to get into panic mode. In a last ditch effort I sent out a Tweet seeking help from a law student. I said I would pay.

I will admit that I was freaked out about this trial that was looming in the near future. Every day I got deeper in August, the trial got closer. Even though I was very confident in my case, I was scared. I was lining up against numerous members of the Chicago Police Department and two very senior prosecutors. I didn't even have a law clerk. But I did have a very powerful ally, the truth.

The trial was scheduled for August 22, 2011. On August 12, I left town for a long weekend. I needed to get away from Chicago and let my head clear before this trial. While I was out of town, I was contacted via email from a young lawyer from Indianapolis that I had some familiarity with through Twitter. She wanted to help with this trial. But there was a problem. I could not afford to pay her an attorney's wage for her work. She didn't care. I told her we would talk when I returned to Chicago.

When we spoke, I gave her a brief rundown of the facts of the case and my theory. I told her that I could pay her very little and she agreed. There were friends in Chicago she could stay with while here. And she really, really wanted to help with this trial. It wasn't hard to see why. These types of cases don't come along too often and she wanted in on it. Perfect.

On Saturday August 20, 2011 I had a 20 mile run that morning and ran sub 7:00 miles the whole way. Post-run found me relaxed and ready to do final prep work. My co-counsel, DawnMarie White, arrived Saturday afternoon having made the drive from Indianapolis late morning. She parked her car at her friend's house. I gave her directions to get to the nearest train station, got her on the train, and told her at which stop to get off. She texted me when she was close and I walked to the train station to meet her.

At the train station we exchanged hellos and a handshake. We made the 10 minute walk back to my loft and immediately went to work. I had the entire file spread out on the cabinet island counter. Earlier that week, I made a 3 page "To Do" list. I showed her the list and we began work.

It's amazing but as soon as DawnMarie arrived on Saturday, I felt much better about the task at hand. I think just having someone next to me as we went into battle got my head into a better place. I had books open all over my loft. I had to look up some rules of evidence in anticipation of objections I knew were going to come. I looked through the Bible that is the Trial Handbook for Illinois Lawyers (Criminal Edition). This is an absolute must have if you try cases in Illinois. A must have. All three volumes of the Illinois Pattern Jury Instructions (Criminal) were open and scattered about my place.

Fortunately, the actual case file was well organized. All of the discovery was broken down into manila folders. The FOIA documents were still in the envelope in which they were mailed. And the IPRA documents were already broken down by police officer and witness.

I originally planned to call 6 witnesses during my case in chief. I gave DawnMarie the statements from 4 of them. They had all given statements to IPRA. But my client's mother had also given a handwritten statement to detectives and a prosecutor on the day of the incident since she was arrested too. The mother had also testified before the Grand Jury. Her story never wavered once.

I wanted DawnMarie to learn what the 4 witnesses had already said and draft direct examination questions to elicit the same version of the story they already told. At that time, I hadn't thought about having her cross-examine any police officers. She was to help me prepare, keep track of exhibits, be my 2nd set of eyes and ears, and do the direct of our 4 female witnesses.

On Sunday we walked over to a nearby Fed-Ex/Kinos and made duplicate trial notebooks. They were large, filling a 3" three ring binder. Back at my place, we went through the police officers that were likely to testify. Unlike most cases, we had police testimony to the IPRA investigator. Thus, going into trial, we knew how they were going to tell the story. And therefore, we knew what facts we could get from each officer that would advance our theory of the case.

Separately, DawnMarie and myself made hand-written notes about each officer's likely testimony that would help us. From these notes, cross-examination questions/outlines would be prepared. We parted ways on Sunday evening pretty early, but both had work to do that night.

On Monday morning we went to court. Here is how we looked.

Monday afternoon we finally got to pick our jury. Voir dire is done pretty efficiently around here. Both sides are allowed to ask questions of the venire. But we are not allowed to pre-try the case. In other words, we can't ask them questions about issues likely to surface during trial. What's that leave us with?

I was never taught how to pick a jury. Or what questions to ask during voir dire. The judge asks each panel member separately a number of questions, such as occupation, marital status, children, know any cops or lawyers, been a victim of a crime (or anyone in their family), and so on. It gives us a decent idea of who they are. But keep in mind, our jury pool extends to the entire county of Cook. Thus, a lot of potential jurors are from the suburbs and usually are white. DawnMarie and I had discussed who our ideal jurors would be. But I believe voir dire is more about dismissing people I don't want on the jury as opposed to selecting those I do want on it.

When I get up to speak to the venire, I go through all of them one at a time and ask a question that digs a little deeper into one the judge already asked. For instance, if a potential juror told the judge he's a sports fan, I will follow up and ask him about specific sports and teams. I must have asked at least 6 this last time around, Cubs or Sox? I usually also ask if they follow the news and from where they get their information. I ask them if they read books. Where they go on vacation.

The importance of these questions isn't really the answer. What I am looking for is how that person interacts with me. Are they speaking to me willingly? Are they smiling? Are they relaxed? What's their body language look like? Typically, anyone that's cagey with me or doesn't appear to like me will be removed.

I can't figure out why, but the prosecutors ask very few questions of the panel individually. And I can't say the questions they do ask make much sense. I really don't think they are ever taught what to ask. In at least 2 jury trials, the prosecutors did not question the panel at all. A very skilled trial attorney once told me that you start to win your case during voire dire. I think he's right. You cannot put a price on having a jury that likes me. From that point forward, I do everything I can to not give them a reason to suddenly stop liking me.

Voire dire in this case took about 4-5 hours. We had our 12 and 2 alternates. Of the 12 there was 1 early 30's black male. And 1 early 30's highly educated Hispanic female. The remaining 10 were white and mostly from the suburbs, about half male, half female. But most of them had families. Having a family is one thing we wanted our ideal juror to have.

I spent most of Monday evening writing my opening statement. But I didn't spend much time preparing cross-examination. This would bite me in the ass on Tuesday in a way I couldn't have predicted.

Tuesday morning we gave opening statements. I was pretty relaxed and looked every juror in the eyes several times each. I had their attention. Score. I spoke for about 15 minutes and told them the story through my client's eyes, attempting to put them in his shoes before they heard any evidence. I told them what to look for during the trial. And finally, I told them that at the close of evidence they would, by using their common sense, conclude my client was not guilty on all counts.

Unfortunately, I never know what order the State will call its witnesses. And they just happened to call an Officer I wasn't really ready to cross-examine. Shit. The direct lasted until the lunch break. Thank God. During lunch I never left the courtroom. Instead I sat there panic-stricken trying to put together a cross-examination. My co-counsel never left my side and attempted to help but I was a bit of a mess. Fuck. Fuck. Fuck. Yeah, I said just that several times. Also as luck would have it, I began to feel physically ill.

By the time court resumed after lunch, I had some cross but it was not in order but rather scattered across 6 pages in my legal pad. Less than 2 minutes into my cross, I began to sweat heavily. I was extremely warm. I felt faint. I felt sick to my stomach. And my thinking was foggy. At some point during my cross, we had to have a sidebar in chambers. After the sidebar, I was the last one out just before the judge. She told me I looked nervous. In truth, I was nervous but also wanted to vomit and jump in a pool.

In total, my cross took maybe 20-30 minutes. It was disjointed, fragmented, sloppy, and just felt awful. It was the worst 20-30 in my career as an attorney. When I sat down, DawnMarie could now clearly see I was sweating heavily. She pulled out a travel size package of tissues and handed it to me. I must have gone through a dozen of them wiping the sweat from my face. I could feel my that dress shirt was soaked.

During the next break, I went into the bathroom right outside the courtroom and threw up. I hadn't eaten anything so it was that nasty stomach juice type of vomit. But I felt a little better. During the direct examination of the State's next witness (another officer) I asked DawnMarie is she wanted to do his cross. At that time, I was still a mess and wanted to be anywhere but in that courtroom. She answered "sure." She knew what we needed out this witness so I wasn't worried. However, there was impeachment evidence and I had no idea if she knew how to do it correctly. After all, this was her first jury trial. Yep, her first.

DawnMarie stood up to cross the officer. Where the officer I crossed got a little combative with me, this officer was actually pretty nice and respectful to her. I honestly think it's because she's a woman. Nevertheless, she began her cross and I sat back and watched. To say I was impressed in an understatement. Prior to trial, I told her how I cross witnesses and my general strategy. I don't know if she had that in mind or not, but she was fantastic.

She laid the foundation for the impeachment. She got the officer to admit to his prior statement, which was inconsistent with his trial testimony. She got a few more good facts from him and sat down. Perfect. There was no need to beat this cop up about an inconsistent statement. I would remind the jury of it during closing.

DawnMarie sat down. I leaned over and whispered "good job!". I relaxed a little. The next witness was an evidence technician that had processed the crime scene. He collected all of the firearm evidence (shells and bullets), marked the bullet strikes in the walls, and took a number of the crime scene photos.

After vomiting one more time, I pulled myself together to cross this witness. I got a lot of favorable facts such as how many shells were collected that were fired by police weapons. How many spent and live shells (4 spent, 5 live) there were in the revolver my client had fired. I put up a picture that showed bullet strikes in my client's bedroom that were caused my police weapons. He had put numbered stickers over each hole in the dry wall. I had him tell the jury how many holes he counted and marked. I also showed him a picture of the door the officer fired his M-4 carbine through and had him count the bullet holes as well.

But the singular best piece of evidence I got from this witness was this: it was the State's theory that in addition to shooting low twice initially and hitting two officers in the lower legs, that he shot twice more but higher through the door. The State would argue this proved he was attempting to murder the person on the other side of it. One officer had already testified he saw particles coming off the middle of the door as bullets came from inside the room my client was in. But curiously the wall opposite that door had no bullet strikes on it.

I showed the evidence technician a picture of the room which contained the wall that any bullets that came from the middle of that door would have hit. You could see the wall in the picture. I was displaying the picture on a projector so everyone in the courtroom could see the picture very enlarged. The witness was standing right next to me in front of the jury where the projection table was located.

I asked "You didn't find any bullet strikes on that wall (I pointed at it), right?" Answer: "No, we did not. If there were any bullet strikes on that wall, we would have marked and photographed them up close." This was a nice example of a witness helping me out by giving more of an answer then he should have.

Using the same picture, I asked "But you did find two bullets under that box spring or bed (pointing at it), correct?" Answer: "Yes, that's correct." Then I sat down. I told the jury during opening statements that my client fired through a hole (created by the cops trying to kick the door open) on the bottom of his bedroom door 4 times, thus he wasn't trying to kill anyone but was rather warning the unknown intruders he was armed and ready to defend himself.

With this one witness, the jury heard my client's revolver had 4 expended shells and that there was no physical evidence he shot through the middle-upper part of the door, but rather through the hole at the bottom, just like I told the jury. Having credibility with a jury is priceless.

But before we ended that day, everyone knew I had just been temporarily ill. I am sure part of it was due to not being fully prepared to cross that officer. I was also a bit nervous. But there was something that spiked a fever, which started to break while I was on my feet asking questions. As we were leaving the courtroom, both prosecutors told me they hoped I felt better tomorrow. And they were genuine.

DawnMarie and I returned to home base and began to prepare cross-examination for Wednesday's witnesses. Even though my cross of the evidence technician went well, I was still very upset about the first witness.

DawnMarie told me that at one point during that cross, she felt that I was a really bad lawyer. I would have thought the same thing. I can't imagine what the jury thought. I needed to have a strong Wednesday. But as we sat reviewing the facts we got from my dodgy cross, we realized I had gotten everything I needed to from that witness. I just got no style points. This was a small consolation. I knew I was better than that.

We prepared cross that night for 4 more police witnesses. I asked DawnMarie if she wanted to cross 2 of them, including one that had been shot. She readily agreed. There was one more officer on the potential witness list and we had no idea what he was going to say. Thus, if he did testify I would do his cross since there wasn't much he could add since he was outside and in front of the apartment when this happened.

When I woke up Wednesday morning I didn't want to get out of bed. I was still upset with myself over what happened on Tuesday. The dark side of me simply wanted to quit. Had the pressure gotten to me? Was I starting to show cracks? I slumped out of bed and made coffee. Then I went for a run. I normally run in the afternoons after court, but when in trial, I have to get up early and get the run out of the way.

Initially my run sucked. My energy levels were low and it didn't feel good. But after a couple of miles things turned around. I remember that morning being very sunny and cool. And as I ran on the bike path that runs along Lake Michigan, I began to pull my head back together. Tuesday was just a fluke. Probably happens to everyone. Hell, even Michael Jordan had off nights. By the time I finished my 8th mile and returned home, my head was back in the game. Let's do this.

We had a good Wednesday. With so many officers testifying, I predicted we would get inconsistent testimony because I felt they were all coloring the story. Or, in other words, lying. And we got some gems that day. DawnMarie's cross of one of the officers who was shot was pretty short but she scored points. Her and I would later say we felt sorry for that officer because he seemed like a really nice guy.

I crossed the other officer that got shot and with the use of pictures make him look like a liar in front of the jury. He testified to things that were simply impossible and I had the pictures to prove it. I would later nail this guy in closing. Then I questioned the Sergeant that was in charge of this search warrant team. Armed with the documents I obtained through FOIA, I got him to admit he hadn't followed correct procedure. He also gave testimony that was heavily inconsistent with the previous witness. Both points would be driven home during closing.

The State did not call one of the witnesses DawnMarie was supposed to cross. But they did call the officer who was outside and in front of the apartment. He didn't have a whole lot to add. He was in front, heard the shots, and immediately ran to the back. Once in the back he saw one of the officers that was shot hopping down the back stairs that led up to the entrance in the apartment (the door the police blew open).

On cross he testified that from the time he heard the first shot until he got around back was about 5 seconds. That was simply impossible. By the time the officer began hopping down the stairs, all of the shooting was over. The police fired 37 times into the bedroom my client was in. And one officer shot a few times through the door and then went outside and shot through a window. There was no way that all happened in 5 seconds.

But, it supported an argument I would make during closing: this whole thing happened so quickly and since my client was initially asleep, he had no way of knowing what was really going on. In other words, he couldn't have known they were cops since he couldn't see through a closed door. My client, in reasonable fear for his and his family's lives, acted in a couple of seconds. Now I had police testimony to support my argument that this whole thing went down extremely quickly.

Around 4:30, the State indicated it was done with their case in chief but wanted to wait until first thing Thursday morning to officially rest. DawnMarie and I left and again returned to home base. Due to logistical reasons, we were not able to actually meet with our witnesses to prep them. I had spent most of the previous Friday afternoon in the county jail with my client. I took 12 pages of notes and basically had his whole life on paper.

But Wednesday night, DawnMarie spoke on the telephone with the witnesses she was going to put on. I was supposed to put on my client and his brother. They would be our last two witnesses. We made a last minute decision not to call one of DawnMarie's witnesses. There wasn't much to be gained through her testimony.

When we got to the courthouse on Thursday morning, our witnesses were there. This was the first time we really spoke with most of them in person. Clearly I had spoken with my client's mother but never about her testimony. She just needed to stay consistent with her prior statements and Grand Jury testimony.

DawnMarie spoke with her witnesses individually very briefly. I spoke with my client's brother. I was very nervous about calling him as a witness. We opened our case Thursday morning and DawnMarie called 1 witness before the lunch break. She called 2 more after lunch. And then I decided on the spot not to call my client's brother. He did have good testimony, but we got most of it in with another witness.

I also felt he could come across as not too credible. I didn't want the jury to think I was trying to fly bullshit by them. It was my decision not to call him and no one, not even my client, knew I decided not to. DawnMarie and my client knew I was having 2nd thoughts about calling him, however. But as soon as I called my client to testify, it was clear I was skipping the brother.

My client was a good witness. I got in some very general background testimony to establish who he is, etc. Though it was objected to, I got in that he had been shot in the past three times. But the judge's ruling during that sidebar really tied my hands. She wouldn't allow me to really get into the specifics of each shooting. I told the judge that I feared if he simply said he got shot but not why or by whom, the jury might conclude he's a gangster living the gangster life, which often includes getting shot. The judge said I could ask 2 questions per shooting.

The first question I asked was when the shooting happened. The 2nd question asked about the circumstances of that shooting. Unfortunately, my client simply stated where in his body he was shot and any injuries he sustained. As soon as he started to answer the question that way, I looked at the judge. She wasn't pleased. But I had asked during the sidebar to be allowed to lead so the jury would hear no more or no less than what the judge wanted them to hear. Example: "you were shot the first time when three guys attempted to rob you, correct?" I thought that made a lot of sense. But the judge said no.

Through his testimony, my client told the story as it had happened through his eyes. This was exactly what I did during opening statements. He talked about being scared. Massive amounts of adrenaline. Fear for his life. Fear for his family's lives. And how he had been asleep and this all happened in a matter of seconds.

He stood up well to cross-examination. The prosecutor tried to trip him up several times but he was on to it and frequently corrected his questioner. He finished testifying around 6:00 pm. We rested our case. Court was dismissed for the day with closing arguments scheduled for 9:00 am Friday morning.

Walking to the parking garage that night, I told DawnMarie that if I delivered a solid closing, I thought we would get the verdict. I felt good. Now I just needed to close it. 

During the three days of testimony, we were supposed to begin at 11:00 am. This was so the court could run through its call, give continuances, and handle minor administrative issues relating to other cases in that courtroom. But we usually started closer to 12:00 pm.

The trial was not well attended. There were what appeared to be police officers here and there along with an occasional law student or junior prosecutor but that was about it. However, since closing arguments began at 9:00 am, we had a packed gallery. Everyone who had business in that courtroom that day was there. I imagine there were even some people out in the hall because there was no more room inside.

But when I stood up to close, I no longer noticed anything or anyone but the jurors. I already wrote about my closing argument here. The State's closing was, as usual, aggressive and slightly loud. But they were trying to sell the jury on things the evidence didn't support but in a lot of cases, contradicted. They had to argue around bad facts and that's never easy.

The jury got the case at 12:19 pm. We left our phone numbers with the deputy and left. I did not want to stay in the courthouse while the jury was deliberating.

On the way out of the courthouse, we ran into one of the alternate jurors that was excused from service as soon as the jury went into deliberations. This was the first time I had ever spoke to a juror and I found it to be a great experience. I won't repeat what he said, but it appeared he was leaning towards giving us the verdict.

A couple minutes later, the other alternate juror was pulling out of the parking garage, saw us all talking, parked his car, and walked up to us. His feelings were pretty much the same. We both thanked them for taking a few minutes to speak with us and headed home.

By the time we gathered our things, walked out of the courthouse, got in my car and drove home, it was about 1:30 pm. Given what the 2 alternate jurors told us, I hoped for a quick verdict. I told myself that if deliberations go into the evening, we might have a problem. As hard as it was, I tried to relax.

At 2:00 pm my phone rang. It was the deputy. They had a verdict. My pulse instantly quickened and I got a slight rush of adrenaline. We hoped back in my car and headed back. I called my client's mom and told her to head to the courtroom. I remember feeling pretty good during that drive but there was a palpable level of nervousness lurking beneath.

We were back in the courtroom pretty close to 2:30. Everyone was waiting for us. The deputy knocked on the judge's door and told her we had arrived. The gallery was now full of cops and my client's family. The judge came out, took the bench, and had the jury brought in.

When the jurors walked in, at least 3 of them looked directly at me. To me, that's a good sign. The foreman handed the deputy the verdict forms. The foreman handed them to the judge. The judge read them. My palms were sweating massively. After reading the forms, the judge reminded the gallery that no outbursts would be allowed.

The judge handed the forms to the clerk and asked her to publish the verdict. The clerk read 8 Not Guilty verdicts. The feeling was beyond describable. The State asked for the jurors to be polled. Individually they confirmed their verdicts. Case over. My client was ordered to be released from the county jail.

The prosecutors looked deflated. I walked over to both of them, shook their hands, and thanked them for a fair trial. Then I walked to the lockup where my client was changing back into his jail clothes for the last time. He said "I love you". I teared up and we hugged. Twice. DawnMarie hugged him as well.

Outside the courtroom my client's family awaited. His mother thanked and hugged me firmly. I said "thank you for trusting me with your son's life." I was teary eyed again. She replied "I always had faith and trust in you, Marcus." More tears. Another hug.

We all took the elevator to the first floor and headed towards the front door. A gaggle of police officers along with the prosecutors were just outside. I warned the family. "Don't look at them," I said. "Just walk on by," I added.

DawnMarie and I exited through a revolving door and stepped outside. All of the cops stared right at me. I don't know what they were thinking, but I am sure it wasn't good. It was a beautiful, sunny day. I pulled out my sunglasses and put them on. We strolled right past everyone and headed home. Time for celebration.

We walked to a pub down the street from me. Here we are....

We each had 2 frozen margaritas and were happily buzzed. I walked DawnMarie to the train stop, said thanks and hugged her goodbye. I came home and laid on my couch. Exhaustion took over. I didn't move much for the next couple of hours. I stared at the TV without realizing what I was watching.

At 10:30 pm, my phone rang. It was Kenny. He called to say thanks again as he walked out of the Cook County jail, which had been his home for the previous 25 months. Not many phone calls are better than one like this. I said "you're welcome. Now spend some time with your family." We said goodbye. I turned off the TV and got into bed. 

I slept well that night.

www-schantz-law.com

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A Closing Argument

From my most recent trial...

If you follow me on Twitter, you know my client was found not guilty on Friday August 26, 2011 by a jury here in Chicago. He was charged with two counts of attempt first degree murder with a firearm, two counts of aggravated battery with a firearm to a police officer, and four counts of Armed Violence. On the day of trial, my client was 23 and could have been sentenced to natural life in prison if convicted.

Here is my actual closing argument I used in the courtroom. What's missing from this are the pictures I showed the jury to aid in my argument.

I am not posting this because I think it's anything special, because it's not. There was only one draft (this one) and was finished literally hours before I gave it. I got home the night we rested our case (Thursday Aug 25) at about 8:00 pm. I took off my tie and dress shirt, but left my slacks and undershirt on. I was too focused on getting this done to change clothes. I made some handwritten notes that took maybe an hour. I ate some take out food.

At about 10:00-10:30, I opened a bottle of Corona, put some lime slices in it, sat at my computer and just started typing. My co-counsel sat on my floor jotting down her own notes that she felt should be incorporated. This is what came out over the course of the next few hours. I finally got most of this done at 2:00 am but went to bed because I was starting to make a lot of typos and knew I needed sleep. I was up on Friday morning at 6:00 am. Loaded with a cup of coffee, I sat down and worked in my co-counsel's suggestions and this was finished by 7:00 am.

Just thought there might be some interest.

Here is also a link to one of the news stories when this incident happened on July 16, 2009. According to my file, I was hired on August 6, 2009. 
 

[all names but my client's have been abbreviated. My client's name is Kenneth, but goes by Kenny. I started referring to him during opening statements as Kenny in an attempt to humanize him. I added some material to this argument very last minute, but this is about 95% of it.]

Homicidal or suicidal, that’s what you have to be to shoot a gun at police officers that are in your home to execute a search warrant, homicidal or suicidal.

This was a case about reckless police conduct that resulted in two officers being shot on July 16, 2009 at _________. But everyone lucked out. Fortunately for the officers, they were released from the emergency room later that day after being shot in the lower leg. Kenny also was extremely lucky he wasn’t killed 10 times over, because as Officer J.M. said, he was shooting to kill him. Police officers fired 37 times into that very small bedroom but almost magically Kenny wasn’t hit. And we saw that bullets fired by police officers went through the wall in Kenny’ room and entered into H.W.’s room where she was sitting on her bed holding her small child. Neither she nor her child were injured either.

I think it’s terrible when police officers are shot in the line of duty. That’s not supposed to happen. But in this case, their own recklessness is to blame, not Kenny Green. This whole operation was rushed. We heard testimony from Officer J.M. that he met with the confidential informant on the morning of July 16. Judge K. signed that warrant at 10:00 am. Three hours later at 1:00 pm, they busted through the door, with guns drawn.

There was no investigation. You heard all they knew was that someone named K.H. lived there. They didn’t know how many adults lived there. They didn’t know if anyone there had a violent history. They didn’t know if K.H. was a dangerous person or was known to keep firearms around him. Officer J.M. told you he was told there might be children at the residence, but he then admitted to telling an investigator shortly after July 16, 2009 that he was not told about any children being at ____________. And how many children were actually there when the cops busted in and started shooting the place up? Six. There were six children there and three of them were within a few feet of all this shooting. And there was another child on the other side of a wall that police fired bullets pierced through.

You heard testimony from Sgt. S. He was the person in charge and it was his duty to contact a SWAT team if needed. He told you a SWAT team would be used for officer safety. And he told you the conditions in which a SWAT team would be needed. Remember when he said a SWAT team would be used? A SWAT team is needed if people on premises had violent backgrounds and/or history of violence to police. Or if there were numerous offenders on premises and the likelihood of firearms on premises was great. How many of these conditions did the cops really know existed or not? The answer is none. They had no idea what the conditions were.

Would a SWAT team have been necessary for this operation? Probably not, but the fact the police didn’t ascertain whether one was indeed necessary shows how careless they went about executing this warrant.

But there is one simple thing the police could have done on July 16, 2009 that would have avoided this whole mess. They didn’t have to try to kick in Kenny’s door when the battering ram was a mere few feet away. Officer G. told you he left it on the porch when they went inside. Officer OT. told you he was trained how to use that ram. He told you he has been responsible for using that ram to open doors during warrant executions in the past. Officer OT. called that bedroom door flimsy. He also said it didn’t have a deadbolt lock. But do you remember he avoided answering my question when I asked if the battering ram would have worked on the bedroom door? And Officer G. also avoided answering the same question. Of course that battering ram would have opened that bedroom door.

That device is designed and used for opening exterior doors. What do you think it would have done to a flimsy interior door with no dead bolt? It would have blown it off the hinges in one strike. If they open the door with that battering ram, Kenny immediately knows it’s the police, just like L.H. did when she saw them and Kenny never gets his gun and then no one gets shot.

That battering ram was only a few feet away from Officer OT. Instead he and Officer M. both turned their back to the door and attempted to kick it in. On the other side of that door was Kenny Green who thought people were in his house that wanted to kill him and/or his family. And because he reasonably felt his life depended on it, Kenny fired his gun to stop this violent intrusion into his home.

The fact that the intruders were actually police officers is unfortunate. Had Kenny Green known they were police officers, none of this happens.

How do we know this? It’s simple. If you’re Kenny in this situation and you know it’s the cops trying into get in your room and you shoot at them, you would have to be one of two things: suicidal or homicidal.

We know Kenny wasn’t suicidal because he jumped out of the line of fire and stayed in the one spot in that bedroom that he was safe. Had Kenny wanted to die, that’s an easy fix. Stand up in front of that door and he’d be dead pretty quick. Or stand up in front of his window. That would have worked too. Kenny didn’t want to die on July 16, 2009. He tried to save his life, not end it.

But Kenny wasn’t homicidal either. He told you that he wasn’t trying to kill the person on the other side of his door. He told you he shot low towards the ground. And the evidence supports this. Both officers were struck in the lower legs. And bullets likely fired from his gun were found underneath the box spring directly across from his door. The box spring was mere inches off the floor. The fact that bullets were found underneath it proves that all the rounds Kenny fired were low towards the ground just like he testified.

Also remember the fact that there were still 5 live bullets in Kenny’s gun. If he were really trying to kill someone, he would have fired all 9 bullets in his gun. But in reality, he didn’t even fire half of them. He fired 4 times low to the ground and then put his gun down as soon as he realized it was the police. The testimony was that once Kenny clearly heard the police talking to him, not only did he speak back to them, but completely complied with their orders and commands. After which he was kicked in the face by a police officer while lying facedown on the floor.

The police would have you believe that they came into Kenny’s apartment with their manners intact. They claimed they calmly ordered K.H. and L.H. to show their hands and not move. But do you really think that’s what happened? Or did they say “Don’t fucking move and put your mother-fucking hands up!” I’ll let you decide that.

There was a lot of testimony about the way the police approached and entered the apartment. A couple officers said Officer G. announced it was the police. And a couple of officers testified they all stood our there yelling, “Police, Search Warrant.” I don’t think it’s really clear who among the officers said what. And I don’t think it matters. You heard testimony that they only waited 10 seconds from the initial knock until they broke the door open. 10 seconds. That’s it. Who among you can answer your front door within 10 seconds after you hear a knock? That’s pretty fast. But it doesn’t really matter. No one inside the apartment heard them knock.

You heard police testimony about why some officers are assigned to the perimeter of where they are executing a search warrant. You were told that often times when people know the cops are coming in, they throw things like drugs and guns out the window. Remember Kenny’s window? There was a large open gap between the edge of the air conditioner and the window frame. He could have easily thrown drugs and the gun out of the window. But did he? No. Why? Well, not only did he not know there were drugs in his room, he didn’t even know it was the police trying to bust down his door.

You have basically two issues to decide. Was Kenny Green justified when he defended himself, his family, and his home? And did Kenny Green possess crack cocaine. Regarding the first issue, let’s look at the facts.

Here is Kenny Green. Awakened from sleep by a rumbling and the sound of screams. He walks towards his door, goes to reach for the knob to open it, and a foot comes bursting through it. He’s immediately scared. He backs away from the door and crouches down. He looks through the hole the foot just made in the door. He sees blue jeans and someone run towards the front of his house where his mother and sisters were. That testimony was corroborated by all of the police testimony of officers who entered the apartment. Remember, Officers G, and Mu. entered and immediately went towards the front of the apartment. This testimony was further corroborated by J. G. who told you she was encountered by a police officer running at her from the back of the apartment.

This was an attempted violent entry into his bedroom. Kenny was just threatened days before by some local gang members that his home was going to be run in. He took this threat so seriously that he bought a gun for protection. He thinks they are making good on their threat. Kenny had been shot with a gun three times and lived, though he lost a kidney as the result of one shooting. Did he think he we would survive a fourth attempt on his life? He was in a very reasonable fear for his life and that of his family. His adrenaline was pumping. This is all happening in mere seconds. He grabs his gun and he shoots.

Was he justified? Absolutely. He did what any reasonable person would have done in that situation. Our system of law recognizes the unquestionable right to defend one’s self and one’s home. The law says that you may respond with force when you reasonably believe the use of that force is necessary to defend yourself against the imminent use of unlawful force. In other words, you don’t have to wait to defend yourself until after you’ve been assaulted. You can take action to prevent it. And that’s exactly what Kenny was doing. He was trying to prevent being killed or seriously injured.

What about defending your home? What’s the law say about that? The law says that you can use force to terminate another’s unlawful entry into your home. In this case, clearly Kenny thought there were intruders in his home attempting to harm him and his family. He was hearing a family member screaming and faced with his door attempting to be busted open. Thus, Kenny was justified in three ways, defending himself, his family and his home.

The law doesn’t say you have to ask who’s kicking down your door before you take action to repel them from your home or prevent them from harming you. The law also doesn’t say you have to warn them before you shoot. And you certainly don’t have to call 911 when you think your life could be over in a matter of seconds.

In this case, Kenny simply did not know these were police in his home because again, to shoot at police who armed and have their weapons drawn and ready to fire, you’d have to be either suicidal or homicidal. Kenny Green was neither. He acted in defense of himself, his family, and his home. And he was absolutely 100% justified in doing so.

The State wants you to believe that Kenny’s door was ½ way broken off before he fired his gun and thus should have known they were cops. Kenny testified there was a hole from a foot coming through it. Officer M. testified he didn’t know what the actual condition of the door was when he was hit. But if that door had been ½ broken off, wouldn’t Officer J.M. have fired through the wide-open bottom instead of through the middle of the door. Remember all the bullet holes in the middle of the door caused by the police fire? If that whole bottom had been broken off, there’s no way the cops shoot through that door with an assault rifle and not hit Kenny.

Officer J.M. shot the rifle 23 times and Officer OT fired his 9mm 14 times. Despite firing into Kenny’s room 37 times, he wasn’t hit once. And why is that? It’s because they couldn’t see what they were shooting at. Or they are the worse shots in the history of law enforcement. Much of the police testimony didn’t make any sense and contradicted itself. Officer J.M., who fired the assault rifle, testified that even after all that firing, his ears were not ringing. But Officer OT. said he’s suffered permanent hearing damage and actually could not hear right after the shooting.

Remember Officer G. tell you that he didn’t see Kenny being pulled from out of his room and that he didn’t clear the bedroom after Kenny was removed from it? But then he was confronted with a statement he gave to an investigator soon after July 16, 2009 that indicated he did see Kenny being pulled from that room and that he did clear it. In fact, he got up in front of you and told you he recognized the pictures from Kenny’s room because he had cleared it.

And how about Officer OT.'s testimony about what he did and saw after going out on the back porch after he was shot. Do you really think it’s possible for him to have looked into that window let alone shot at Kenny while holding his gun with his left hand even though he’s a right-handed shot? Do you remember when I asked him to show you all on the picture where his feet were when he performed that miraculous stunt? And do you remember his answer? I don’t recall. He didn’t recall because he never looked in that window. It’s impossible. What he did was hold his gun over his head and pointed it towards the window and fired. If he was able to safely see inside and safely fire his gun, he wouldn’t have shot the air conditioner 6 times, right? Doesn’t this sound incredibly unsafe?

And Officer O’T.’s testimony that he saw Kenny standing up and firing, while impossible to have seen, was also directly contradicted by the testimony of Sgt. S. Remember Kenny could only have fired that weapon 4 times. Kenny said he remembered firing once, but that due to the circumstances of being in fear coupled with massive amounts of adrenaline pumping through his body, he probably did fire 4 times total.

There were two initial shots. Those were probably the ones that hit Officer OT. and Officer M. There were two and only two more shots. Sgt S. testified the 2^nd two shots came while Officer OT. was inside near the bedroom door and before he came back out on the porch. If that’s true, than it’s impossible Officer OT. saw Kenny firing. I just said it was impossible for him to have seen in that window, but there were no more rounds fired by Kenny, thus doubling the impossibility that Officer OT. saw what he said he did.

And lets not forget that Officer OT. said that when he looked inside and saw Kenny, Kenny was standing up in front of the door, arms extended shooting his gun. He even said he saw muzzle flashes. We know that can’t be true because if it were true, Kenny would be dead.

The second issue you must decide is whether the crack found in the west bedroom was his. One of the most instructing pieces of evidence was Officer J.M. own sworn search warrant complaint. The document prepared and showed to Judge K., who approved the warrant and interviewed the C/I, indicated the confidential informant purchased crack from K.H., not Kenny. And that K.H. went into the bedroom to get the crack.

The premise is that K.H. kept some of the crack he was selling in the west bedroom. Besides the search warrant complaint, what else corroborates this premise? J.G. testified that Kenny only stayed in that house 1-2 nights per week. L.H. said the same thing. And Kenny told you he spent 4-5 nights per week with his girlfriend in Indiana. J.G. and L.H. also testified that K.H. and L.H. slept in that bedroom on nights Kenny wasn’t home. Kenny told you that K.H. had permission to sleep in his bedroom when he wasn’t home and to keep some of his things in that bedroom. Kenny said “K.H. is my brother”.

What we have is evidence that K.H. was in that west bedroom a lot. And his own fiancée told you that at the time of this incident, K.H. was indeed selling crack. What corroborates this claim? The police’s search warrant complaint. Remember, the C/I said he bought the crack from K.H., not Kenny. Also L.H. testified that K.H. regularly kept crack in both of the back bedrooms and moved it around everyday.

What you did not hear was any evidence that Kenny Green had anything to do with crack cocaine. There was no evidence of this. The police didn’t tell you they got any of Kenny’s fingerprints off the drugs, did they? The State didn’t produce one witness that told you they ever saw Kenny in possession of any crack cocaine. The State wants you to believe that simply because some crack was found in a bedroom Kenny spent 1-2 nights a week in, that it was his crack, when all of the evidence proves the crack belonged to Keith.

You saw how small the packages were the crack was found in. You saw the pictures of where they were found in the room. And you heard from the officer that recovered the crack that none of it was in plain view. The police had to move stuff before they could find it. If the cops, who are trained to find drugs, couldn’t see it without looking for it, it’s easy to see how Kenny who wasn’t there that much would have not known it was even in his room. [Jury instruction on possession]

It’s simple. That crack belonged to the crack dealer, K.H. The person the C/I bought the crack from, K.H.

[Jury instructions; Attempt Murder, no intent. Aggravated Battery, didn’t know were cops]

When I stood up here before you on Tuesday morning, I told you the story of what happened from Kenny’s eyes. I attempted to put you in Kenny’s shoes on July 16, 2009. Even though he didn’t have to, Kenny told you all yesterday what happened, how he felt, and why he did what he did. And what he told you was the truth.

I told you that you would come to two conclusions once you heard and saw all of the evidence. The first conclusion was that Kenny was justified in doing what he did to protect himself, his family, and his home. And the second conclusion I said you would reach was that the crack cocaine did not belong to Kenny.

I also said that these conclusions would be very sensible if you used your common sense. Now it is time for you to use your common sense and when you do, you will easily find Kenny Green Not Guilty on all counts. We ask that you all sign the Not Guilty verdict forms. It’s ok for you to do so and feel good about your verdict because if you do the job you were sworn to do as jurors in this case, Not Guilty on all counts is the only proper verdict that’s supported by the evidence you were presented with.

Read more about this case here. 

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Where's His Lawyer?

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

In Illinois, though it's a defendant's motion, it's the State that has the burden of proof at hearing. The government must prove by just a preponderance of the evidence (more likely than not) that the statement was given and taken lawfully. Most allegations in such a motion are that either the defendant's Miranda rights were violated or that the statement was not voluntarily given. 

With the burden of proof so low, it's easy to understand why these motions are seldom sustained. The State calls a detective to testify. The detective says Miranda warnings were given, there was no physical force used, defendant was allowed to use the bathroom, etc. In summary, the detective testifies that everything that took place surrounding the statement was legitimate.

But in Illinois, things can, and often do, go a step further. An Assistant State's Attorney gets involved. You might think there's nothing wrong with this. If you've ever watched Law and Order, you will often see the DA standing on the other side of a one way mirror watching an interrogation. And you will see the DA interacting with detectives, instructing them on what questions to ask, etc. After all, the DA is a lawyer. The DA knows exactly what the government needs to prove its case at trial.

I know it's only TV, but when does the DA actually go in and question a suspect who has no lawyer sitting next to him? That doesn't seem right, does it? Keep reading. 

In Chicago (and I assume the rest of the state), the county state's attorneys office has a prosecutor on call 24 hours a day for the purpose of felony review. This attorney has the sole discretion to approve felony charges against someone in police custody. They review the evidence and then decide whether it's enough. There's nothing wrong with this. 

But in many situations, the felony review attorney does a whole lot more than simply sign off on charges. They assist the police with their investigations. I also have no problem with this. However, our felony review attorneys regularly take part in interrogations of suspects in custody. And, it's actually this same attorney that prepares written confessions, which the suspect ultimately signs. It's also this same attorney who approves the felony charges against the suspect. These roles I take issue with.

The suspect is told that this attorney is an ASA and not the their lawyer. But does the suspect really understand this? Does the suspect realize this attorney is there to hang the defendant? I actually argued that this practice was equivalent to a legal lynching. Yes, I said exactly that.

The prosecutor knows exactly what needs to be contained in a confession in order to insure a guilty verdict should the case ever see trial. Thus, the questioning of the suspect is designed to elicit the most incriminating facts. In a lot of cases, the suspect really believes he is going home if he cooperates. He's been befriended by a detective and then introduced sometimes 24-36 hours later to a nice lawyer wearing a suit. The suspect has been given cigarettes to smoke and McDonalds to eat.

I think at no time does the suspect fully understand that he's being lured into an ambush. And that if he cooperates as requested, not only is he not going home, he's probably eventually going to prison. So, where is the suspect's lawyer? Good question.

Miranda speaks to the 5th Amendment right to remain silent. Usually when someone tells detectives they want a lawyer or don't want to talk, the interrogation is over. Usually.

But the crux of my argument in this case was not Miranda. It's really hard to get a judge to buy that no Miranda warnings were given. I felt the 6th Amendment right to counsel should have been triggered. I've also written about the differences between the 5th and 6th Amendments and the right to a lawyer.

The 6th Amendment right to counsel isn't triggered until the prosecution has begun or the defendant is brought into court. That seems pretty cut and dry. But I argued the involvement of the prosecutor was clearly the beginning of the prosecution. The attorney was there to get a signed confession that would hold up in court and contain facts to prove the government's case. He also approved the felony charges. That sounds to me like the beginning of the prosecution.

But the judge disagreed. He said though my argument was novel, he could find no authority to support it. And he's right. There is no controlling case that holds my client's 6th Amendment rights were triggered due to the involvement of the Assistant State's Attorney. But just because there's no case, doesn't mean I am wrong.

I argued that I couldn't think of a time when a criminal suspect had a more dire need for legal counsel, than the point at which they agree to sign a confession. A confession prepared by an Assistant State's Attorney. They simply do not understand the ramifications behind their actions. They have not been advised of this crucial information. For, as I pointed out, if there's a signed confession, it's doubtful the defendant will ever need a trial attorney.

I think the judge actually bought my argument because he said "I can find no authority today, to support your argument."

The reality is that the suspect is never told he is signing a confession. It's always referred to as a statement. I like the clever distinction there. Even a pretty ignorant person knows signing a confession probably isn't a good thing. But a statement must seem harmless. The cops are trained at getting them. "Oh Mr. Suspect, just help us. Tell us what happened and this will all be over." Is this really fair?

How many suspects would sign a confession or even give an oral statement if they were warned as follows: any statement to any police officer or any Assistant State's Attorney will more likely than not result in felony criminal charges, which will place you in the custody of the county jail for up to two to three years and then ultimately in prison for even more time.

Who that understands that, still talks or signs a confession? I don't think many.

The beginning of my proposed warning sounds pretty similar to Miranda. But I feel the understanding of the right to remain silent is trumped by the need to understand the real consequences if you talk.

"Anything you say can and will be used against you in a court of law." I know what the last sentence means because I am a criminal lawyer. But can the average high school dropout with no GED appreciate the meaning? I think not.

The fact that statements and confessions of criminal suspects in my jurisdiction are allowed to happen as I have written, is constitutionally flagrant (said this in my argument as well). In my opinion, there are serious due process and fundamental fairness issues.

Doesn't a suspect have the right to have someone looking out for their best interest? Why is it that in way more cases than not, the only lawyer the suspect ever speaks to is there to screw him? What's even more egregious is that all written statements are prepared by the prosecutor. It's NEVER in the suspect's handwriting. It's never even the suspect's own words. It's either typed or handwritten by the ASA and contains words and language no suspect would ever use. Who speaks like this: "subsequent to arming himself with a 9mm semi-automatic handgun, Mr. Suspect carefully approached the victim from the rear and demanded money"?

The only people that talk like this are cops and lawyers. What has happened is that a prosecutor took a story from a suspect and cleaned it up so it's presentable in court. Then the suspect signs every page of the statement indicating it's his words, but it never really is. Again, this seems to be part of the prosecution. Am I the only person who feels this way?

I would love to read the opinion that the late Justice Brennan would have written if presented with this issue. This doesn't pass the sniff test, but yet goes on around me everyday.

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