Defendant Demands Trial

The 6th Amendment reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

In Illinois the right to a speedy trial is also in the state constitution and it was also codified by statute. After all, the word "speedy" can mean a lot of things.

If in custody, the State has 120 days to bring the defendant to trial, as long as the demand for speedy trial has been maintained since the arrest. But, it rarely is. I wrote about this issue last year.

I am not going to re-write my prior post, so if you want to know the mechanics of the speedy trial rule in my jurisdiction please read the first post.

However, by law, if the State does not start trial within 120 days, per the rule, the defendant's case is dismissed by the court. 

I am only revisiting this topic because twice this week I have had to say "defendant demands trial." This isn't done too often.

If you read earlier this week, the State answered "not ready" for an attempt murder case that was set for trial Tuesday. After my last trial ended last Thursday, I spent the next four days doing final prep work for Tuesday's trial. I was ready. The State wasn't.

I wasn't completely surprised but I was a little angry. I spent so much time doing mental prep work...you know getting myself psyched up and ready to go. Having the State answer "not ready" was, for me, a total let down.

I imagine it's like being a professional boxer. The big fight is set. Don King promotes it. Pay-per-view is broadcasting it. You get in shape by training for hours and hours. And then you mentally prepare to get the "eye of the Tiger."

All of this to get to the day of the fight and learn your opponent doesn't want to step in the ring with you. Huh? Are you for real? That's close to what it feels like to me.

When this happens, the defense attorney has two options. Continue the case by agreement and pick a new trial date with the State. Or demand trial and let the State pick the new trial date. That's right, if trial is demanded, the State gets to pick when.

What if I already have a trial set for the day the State picks? This actually did happen this week. But, too bad. At least one of them isn't going to proceed. So now I have to reschedule the trial that was scheduled first since it was by agreement and the clients are on bond.

Now I have to go advance the first case and pick a new trial date which won't make that judge or prosecutor happy. The clients aren't happy either. But I demanded on the attempt murder case and my client's in jail. He gets priority right now.

I had a murder case set for March 8. I have been working on that case since last August. It was originally set for trial in February. But the judge had a seminar, thus the March date. Today was supposed to be the last court date prior to trial. Motions in limine were ordered to be filed today. I prepared mine.

I got to court this morning to learn the State won't be ready on March 8. Again? Come on. The felony courtrooms have at least 3 prosecutors. They have secretaries, paid law clerks, investigators, the police department and they can't get ready for trial?

In this case there are 2 defendants. My co-counsel said she was going to demand and I agreed. We demanded trial and I held my breath, hoping the State wasn't going to pick a date when I already have a trial set. And God forbid the same date the State selected on Tuesday.

I ended up lucking out. But this trial demand business stinks from the defense perspective. The State can drag their feet all the way through discovery, not answer ready for trial when I am ready, then pick a date when its best for them even if it's not a good date for me. And not to mention the attitude I get hit with when I say "defendant demands trial."

In all fairness, the prosecutor this morning was pretty cool about it. He actually didn't mind the trial demand. He was a little irritated but not mean like others. I guess he's been having problems getting some last minute work done for him for this case, but now that there's been a demand, I guess he gets priority.

As of right now, my next scheduled trial is March 15. It's an attempt murder with 2 shooting victims. I was in court for that case this morning too. This was the case I came in on at the very last minute. Why do I have a feeling that on March 15, I will once again have to say "defendant demands trial"?

www.schantz-law.com

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Hard to Defend

I was recently contacted by a friend from law school. I haven't seen nor heard from him in close to 4 years. He was quietly one of the top students in my class. I say quietly because he wasn't pompous, elitist, or self-important. And like me, he's a "down-stater." We are humble folk, if nothing else.

After graduation my friend went back down state. He works at a law firm, but I don't know which one. And until a couple of days ago I had no idea he did criminal defense work.

He wrote to me about a post of mine from last week. I was shocked to learn people might actually read this blog. Anyway, something about that post struck a common chord with him, especially the part about defending a client you believe to be factually innocent.

He wrote that his son had recently asked him how he could defend someone who is guilty. He answered that it was easier to defend a guilty person because there is less pressure. While I realize that to be true, I have never thought about it that way, which is probably why he was a better student than myself. He thinks differently. Perhaps on a higher level. I don't know.

My reptilian brain has been tossing around that concept since I read it. Now that I have had a few days to think about it, I wanted to write a bit.

I have written in the past that I won't take a case of any seriousness unless I am pretty sure the client is innocent. Right now I have 2 murders, and 3 attempt murders (although 1 is just charged for being there while his buddy shot at a house). All 5 cases have good facts and minimal, if any, physical evidence.

If someone has inflicted great bodily harm, I don't want to be sitting next to the the guy that did it. As a staunch defender of the constitution, I do believe everyone is entitled to a defense, despite the crime. But right now, with my limited experience, I wouldn't feel comfortable taking a likely guilty case to trial.

I think I know how to win a case with good facts. I think I know how a case with close facts could be won. But I have no clue how to win a dog. I cannot yet weave gold from crap. And really, even if I did, I don't want to put murderers back on the street. I don't need the money that bad.

However, I do play a part in getting factually guilty people off in the name of the constitution. But I draw the line at violent crime. I sleep better at night, but not really. It is sometimes hard to sleep knowing you have an innocent client in jail. Right now, I have at least 5, so I sleep poorly most nights.

And this is where my friend and I have felt the same pressure. All of my clients, and their families, with the serious cases believe they will be found not guilty. Why? It's expected. Because that's what they are. Not guilty. They expect the justice system to work. They believe in the system.

Whether or not it's clearly stated, they must have faith in me. I think it's implied, as I am part of the system. But I don't think anyone is naive enough to blindly assume that just any old attorney will do. If they did, why hire private counsel? No, there must be belief in me. Why? Not sure.

If you never wonder if that belief might be misplaced, you're either Clarence Darrow's reincarnate or you never ask yourself the tough questions. I am not speaking about brooding on potential failure, but rather just being aware of the stakes. And your role. It's enormous.

You are your client's only fan who can put on his case. You may have witnesses and you may have evidence, but when the rubber meets the road, you're it. You are seen, correctly or not, as being the only obstacle attempting to frustrate the government's undying effort to lock up your client for life. Again, you're it.

This belief in me is palpable. I can smell it. I can hear it. I can taste it. And it causes a lot of stress and anxiety. If I fail, the system fails. Or so it would seem.

These clients are all looking at decades of prison time and for some, it's tantamount to a life sentence. For some reason all of these people placed the burden of preventing a life of imprisonment on me. My experience level, or lack thereof, was fully disclosed to all of them.

The universal response from the mothers of all of these clients is "I just want you to help my son. I want someone to represent him that will care."

How do you say "no" to that? I can't. I may be short on experience but I bring an endless supply of caring. I care too much and at times, it's a personal liability.

I also have a soft spot for distraught mothers. Grandmothers are even worse. All grandmothers love their grandsons unconditionally. "Well, he's really a good kid but just did something stupid."

And here's the one that gets me every time and I hear it a lot "Jesus brought you to us for a reason, it's in God's hands now. You will be fine, baby." What do you do with that? You can't decline to handle a case if you were sent by Jesus, with God's approval.

I am only half-kidding. To some of you that may seem a bit silly or misguided, but my people actually believe it to be true. And, it might just be. Who am I to say? I am not going to argue with them. If they feel better by thinking a higher power is involved, then so be it. And again, they might be right.

After my guilty verdict last week, both my client's crying mother and girlfriend hugged me and said "thank you." "For what? We lost" I said. "But you cared and fought for him. You gave him a chance."

If I stop and think about the ramifications and possible outcomes of some of my current cases, it causes a brief, but massive panic attack. So, I try not to do it and just focus on the case and remind myself that I will know the facts better than my opponent.

If you have a beating heart, an ounce of empathy, and maybe a dash of compassion, some of my cases would eat at you. You also would not sleep well.

But you might be motivated more than you ever have been in your entire life. You might even feel like you have a purpose. And a purpose, is quite a thing.

I don't represent those who can afford to hire an attorney, I zealously defend those who can't afford not to hire an attorney. 

www.schantz-law.com

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The Ends Jusitfy the Means...I Mean Search

I handle a lot of cases that are the result of contraband being found during a vehicle search. Last spring I naively thought Arizona v. Gant put some much needed teeth back into the 4th Amendment.

In less than one year, here in Chicago, Gant is meaningless. As I have written, suddenly everyone is keeping their guns and drugs in plain view. I have been thinking about this a lot lately because of very similar preliminary hearing police officer testimony.

When someone calls me about a case and I know what the charge is, the first thing I ask is "tell me about the arrest." Here is the story I hear all the time.

"I was driving and the police pulled me over. Told me to get out of the car. Searched it and found weed in the glove box, or coke in the console, or maybe a pistol under the driver's seat."

Then I ask, "why were you pulled over?"

"I don't know"

"Did you have a valid driver's license?"

"Yeah"

"Were you issued a traffic ticket?"

"Nope"

This scenario isn't universally true. I never realized how many people drive around with no license. In Illinois (at least around here) if you get caught driving with no license, you're getting arrested. Out in DuPage county, I hear they put people in the county jail for 30 days as punishment.

Gant was supposed to prevent what comes next. The vehicle search. But the cops are smart. They still search the car. But now if they find any contraband the search was incident to impound, which is legal. It's called an inventory search and it's a judicially created exception to the search warrant requirement for vehicles.

Inventory searches are done to protect the vehicle owner's property. The cops want to make sure any Rolex watches in the car are inventoried properly and returned to you. That's the story anyway.

Inventory searches are really done to find stuff that puts you in the county jail with a felony arrest. Our jail is a city inside a city, sort of like the Vatican but much less holy. 

But not everyone drives with no license. Some people do, actually, have them. For those folks it's a shame they bought a car that inherently emits a strong odor of marijuana. Some models have a nice burning weed smell but more executive models come with packaged weed smell.

If your car smells like weed it's getting searched. If nothing is found, you get let go. No harm, no foul. You will probably just be grateful a run-in with the police didn't end up with you being sent to county. Phew!

But, if something is found, well your car smells like weed and it's your fault.

In all seriousness, the cops around here pull people out of their car and search it as a matter of course. And as stated, if nothing is found, you get let go. But, if something is found chances are you were stupid enough to leave it in plain view or your car smells like Cheech and Chong camped inside of it.

Now here is where it gets plain stupid. $20 bags of crack and heroin are found in cars hourly. Let's say it's your car and you were the only person in it. What's going to happen?

The car is getting impounded and you're going to the county jail. 2-3 weeks later you will have your preliminary hearing and the judge will find no probable cause because of the small amount of drugs found. That night you will get out of jail.

If you had any cash on you when arrested, you're never getting that back. That's gone. It was drug money. Forget it.

And to add insult to injury, it's going to cost you over $1,000 to get your car back.

As you can imagine, a lot of cars are never retrieved. I often wonder what's done with them. Can you go, just get the rims and leave the car for say, $300? How about the stereo? The sub-woofer in the trunk? $5 to get my fuzzy dice, please sir?

It gets interesting when someone is arrested and it's not their car. Your girlfriend has only $1,000. Question: is she going to use that money to (a) bond you out, or (b) get her car out of impound so she can get to work?

Forget about. You're eating jailhouse bologna sandwiches for a couple of weeks. And your girl is finding a new man. One that won't smoke weed while driving her car.

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Felony Review

Chicago police are authorized to bring felony charges for "on-view" arrests. If the cops make the arrest contemporaneously to the offense, the police department has authority to charge. Example: person found with cocaine in their pocket. Easy.

However, once detectives get involved, felony charges have to be approved by the State's Attorney's Office. It makes sense because the police didn't see the crime as it was committed or at any time close. An example is a murder investigation.

Assistant State's Attorneys rotate through felony review, which I call felony approval. In it's simplest use, a detective calls the on-call felony review attorney and runs the case by them. I don't know what the policy or threshold is, but if the attorney thinks there's enough evidence, they approve felony charges.

Sometimes, however, the ASA's go to the police stations to review the case, interview witnesses, and take written statements. And although this sounds like a great, thorough system, it often fails in practice.

There is no way some of these cases are getting a really good look prior to being charged.

In a typical case that's been investigated, I may have up to four versions of statements from a witness, that are given in chronological order. First are the detective's hand-written notes (GPR's...General Progress Reports) from the initial interview. These notes are usually copied exactly into the computerized supplementary report. The "supp" as we call it, is the 2nd version.

Some witnesses are asked to give a written statement (3rd version) in the prensce of an ASA and a detective. Each page of the statement is signed by everyone present and they all contain language to the effect that the witness was not threatened, not handcuffed, was allowed to use the bathroom, and was given a pop to drink. Some are lucky enough to get McDonald's.

If there is a 4th version, it's grand jury testimony.

I had a case set for trial today. My client was charged with shooting another young man last June. This is very serious case. 31 years in prison is the minimum sentence. The state had 4 eyewitnesses that said they saw my client do the shooting. None of the boys testified before the grand jury.

As of yesterday morning, I only had versions 2 and 3 of their statements. The state had not produced the hand-written notes, or GPR's. I assumed, and incorrectly, there were none because this case was closed 8 hours after the shooting. Had there been GPR's, they would have been given to me pursuant to Illinois Supreme Court Rule 412. Plus, I filed a discovery motion requesting the GPR's (among other things) back in August.

Rule 412 lays out what the state has to give the defendant to prepare his case for trial. For you non-lawyers, this is called discovery. Basically, we get everything. If the rules are followed, there are no surprises at trial.

The defense also has to give certain discovery information to the state, such as: a list of witnesses, possible defenses (self-defense, alibi, etc), list of tangible pieces of physical evidence, and scientific test results the defense intends to introduce at trial. 

Again, there should be no surprises at trial. How about the night before trial?

Last night I was called by one of the prosecutors. I was asked if I had the GPR's. No. I don't. I was told the police just gave them to the her. She said she would fax them to me. Great. More crap I have to review.

But, I assumed the GPR's would be a mirror of what was in the "Supp". That's how it should be. Well, about that word assume, when you do assume you make an ass out of u and me.

I only got GPR's for 3 of the 4 witnesses. One of the witnesses' story changed completely from the GPR to the Supp. He went from not seeing the face of the shooter and running before the first shot, to seeing clearly that it was my client and even was able to describe the baseball cap he was wearing. And now claimed he saw the victim get shot before he ran.

I made a spreadsheet and compared the facts found in all 3 versions from all 4 witnesses (except 1 of them because I still don't have his GPR).

I found it amazing how many more facts kept being added to their statements as the case was being assembled in just one day. By the time they all make their written statements, the amount of facts they recalled was as if at one fraction of a second their brains snapped a picture like a camera.

The problem is that our brain is not a camera. When you hear gunfire you run. You don't look to see where it's coming from and notice the shoes the shooter is wearing, while looking him in the face, being able to read his ball cap, and being able to tell it was a semi-automatic handgun from about 100 feet away.

Well, my brain doesn't work like that. But I may be slow.

There is one huge piece of physical evidence in the case too, but I am not going to mention it. It was acquired the day of the shooting and is very favorable to my defense. And this piece of evidence was not disclosed, though requested several times, until 6 months into the case.

Did the felony review attorney really look at this case? Did the detectives lay out their written notes for comparison? Did an attorney notice the inconsistencies between the 4 statements? Or did the cops keep the lawyer in the dark?

There's evil at work here. But who's the evil-doer? Or was this all just an isolated mistake?

Let's briefly review a couple more.

Have a client charged with residential burglary. One fingerprint lifted off some type of box inside the house has my client's print on it. There were 4 other prints lifted from the box. None of them belong to the homeowner or my client. He was arrested several months after the burglary. The evidence technician didn't take a picture of the box from which the print was lifted nor did the police inventory it.

Therefore, the evidence is one print from some type of box the home owner thought was moved. That's it. The entire case. No witnesses. No pawn records. No property in my client's house. And not only did it pass felony review, it was indicted by the grand jury.

Next up, I have a murder case that arose from an attempted car hijacking gone wrong. There was one eye-witness and one other person in the car that didn't see the bad guy. The eye-witness tells the ASA prior to testifying before the grand jury he's no longer sure he got the right person. Detectives pressure him but he doesn't give in.

He's not called before the GJ. But, the other witness is; the one that couldn't ID the shooter. In the space of 5 pages of testimony she goes from not seeing the shooter's face to being sure it was my client.

In this case, there is NO physical evidence tying my client to anything. The only evidence they had was the one eye-witness who changed his mind a week later. This was back in August and still my client still sits in jail with no bond, awaiting a late March trial.

Knowing the one eye-witness is no longer sure he ID'd the right guy, you would think the police might take another look at the case. Not in Chicago. It would take a Presidential Order to re-open a case that's been closed for prosecution. 

It was only known to me last month that the witness balked before the GJ and thus wasn't called. I couldn't believe I was reading what I read. And I really couldn't believe it was actually disclosed to me. Then I kicked myself in the butt for not noticing that the only eye-witness didn't testify. I felt so stupid.

I have a feeling the cops are playing the odds. I don't know an exact number, but I estimate up to 85% of people charged with felonies in Chicago, cannot afford to hire private counsel. The cops don't think anyone is going to take the time to thoroughly review a case.

Before doing criminal work I was in workers' compensation defense. I spent two years reviewing medical records, looking for inconsistencies in patient histories, complaints, test results, etc. I can find gnat shit in pepper.

The PD's don't have the time or the manpower. They are overworked and understaffed. Under appreciated too. A typical felony trial PD has up to 100 cases at any one time. I have about 25. I work from home. I work Friday nights. Sunday mornings. I never leave work. When I work up a case, I eat, sleep, and breath it. It becomes me. Or, I become it.

I do have a few law students who are helping me right now and are generously doing it for free. In fact, I was only so well prepared for this morning's trial because of the great work one of them did checking facts and then challenging my theory of the case. And she's a 1L. Amazing.

Though she hasn't even had evidence or trial advocacy yet, I showed her my system of cross-examination (actually it's mostly an adapted version of Pozner & Dodd's system ) and she was able to put some very useful stuff together.

My other 2 helpers have already reviewed files that are set for trial but I am not doing the final prep work yet.

Never underestimate the power of a well-motivated law student. And never underestimate a ravenously hungry, would-be trial, attorney who loves his work.

Not surprisingly, the State answered "not ready" this morning. And I wonder why, but don't really care. I was forced to demand trial. I already had the speedy trial motion prepared and dated for today. Something told me this was going to happen.

They now have 71 days to begin trial or my client goes home.

If the cops made a bad case, the state is stuck with it. One of their own supposedly reviewed (approved) it. You charged it, now prove it. You want a guilty? Earn it. Do your job. Be a lawyer and not a plea dealer. I can't figure out how someone who obviously aspired to be a trial attorney hates trying cases like so many of them do.

In some courtrooms, you get treated like a troublemaker if you try to make them do their job. Demand trial, difficult attorney. Demand jury trial, a$$hole.

If you think I am a pain in your tush now, wait a few years until I get really, really good at this. But, fortunately you will have probably been assigned to felony review by then and won't have to deal with me.

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The Good PD

Don't have time for a lengthy post but wanted to note this quickly because I bumped into something extraordinary today.

Every now and then I am reminded that there are some very caring people in the world. In my line of work it's rare, but it does happen.

Today was I called by a public defender in Minnesota. I am not going to mention any specifics because I don't know if she would want to be named. However, a former client of hers was recently arrested in Chicago. He called her for help.

There might be some video footage relevant to his case. There is fear that if this video does exist, it will be destroyed 30 days after it was captured. Therefore, a subpoena has to be issued immediately. But there's a problem.

The defendant has not been assigned a public defender in Chicago. A defendant usually has one PD at the bond hearing, a different one at the preliminary hearing, and finally their assigned PD at the arraignment in the trial courtroom.

Right now the defendant is between his preliminary hearing and his arraignment, so technically he has no attorney. And if he has no attorney, no one can or will issue a subpoena for the video. By the time he is arraigned the 30 days will have expired and the video, if it exists, will have been destroyed.

This is where I come in.

She asked if I could help. I found it a little strange a PD in another state was calling me about an ex-client of hers that's now in Chicago and has a legal problem.

I was told a very sad story. This man was wrongfully convicted of murder and spent 10 years in prison before he finally got a new trial. Apparently, she was his attorney at some point in that process, if not the entire time.

It appears they bonded. He has reached to her for help and she wants to help him. It was impossible not to want to help her, help him. 

I told her I would gather what case information I could and issue a subpoena. I made a couple of phone calls, then quickly prepared a subpoena and sent it out.

I asked her who was going to represent him. He has a very serious case. She said he had no money, so likely the PD's office would be defending him. She believes he's innocent. I kept talking. Eventually she asked how much I would charge to take the case. I made a generous offer, including trial.

She said she would pay. It's not a lot of money. But it's a lot of money for an out of state PD to pay for an ex-client. I don't know who this woman is, but I hope to meet her. People like this don't come along everyday. It would be nice to actually see one in person.

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Escaped Death Twice, Then Acquitted

Yesterday I had to do legal research. I ran into an evidentiary question while preparing for next week's trial.

The issue: whether a non-testifying, 3rd party's criminal background can be introduced by the defendant at trial in an effort to show someone else committed the crime.

When I framed the issue I was immediately stumped. I had an instinct but no authority. I emailed Tom Gallagher in Minneapolis to ask him his thoughts. This is not an everyday evidence issue.

As we lawyers are trained to do, I went to a book in search of the answer. I have a very good library I have been piecing together.

I once heard said of lawyers: they don't know everything, but know how to find the answer.

I have two books that discuss Illinois evidence. Cleary and Graham's Handbook of Illinois Evidence is by far the most well-known and often cited in case law. As a back-up I have a West publication, Courtroom Handbook on Illinois Evidence.

Both books discuss evidentiary issues such as relevancy, witnesses, and hearsay (among others). The books lay out rules that are taken from current Illinois case law. The case citation is also provided.

I first looked in Cleary like always. Didn't find what I was looking for. But I found it in the West book. Under Section 404(b):3 it reads:

"Within certain limits, a defendant in a criminal case may introduce evidence that tends to show that another person committed the crime with which he is charged."

A-ha! My issue almost to the exact word. The case cited is People v. Cruz, 162 Ill.2d 314 (1994) I logged on to Westlaw to read the case. I needed to make sure the holding is applicable to my case.[I later found the case citation in Cleary. I just didn't see it the first time].

I was not pleased to find a 64 page opinion waiting for me. However, thanks to West's key digest system, it's easy to find the specific issue in the body of the case. This is a shortcut, however. I rarely use it. I like to read fact patterns. If I have to argue my position I have to be able to analogize and distinguish from the fact pattern found in the controlling case.

Some people don't do this. They cite from an evidence handbook or from another case for one proposition of law. But they never read the entire case to give the proposition context. You will look like an idiot if asked about the case you cited and you know nothing about it. You will lose credibility with the judge. That would be bad. Very bad.

Anyway, back to Cruz. This case was nasty. Horrible. Sad. Terrible. I don't have words for it. A 10 year old girl, home sick from school and alone, was taken from her Naperville home in 1983. She was sexually assaulted in ways I don't want to write about. Then she was bludgeoned to death and left in the woods, where she was found 5 days later.

I am not going to break down the case. Don't have time. But, Rolando Cruz and Alejandro Hernandez, were convicted by jury and sentenced to death in 1985. A third man was also tried but the jury wasn't able to reach a verdict. All three defendants were tried together.

As with all cases in which the death penalty is imposed, the Illinois Supreme Court reviewed the case. On review, the conviction was reversed and remanded for a new trial. I don't know the entire legal reason why. But it had to do with a severance issue. In other words, the Supreme Court ruled Cruz should have had a separate trial (I think).

Cruz was again convicted by jury and again sentenced to death. But his penalty was stayed because on review of the sentence (only) by the Illinois Supreme Court, three Justices dissented. Cruz appealed for another hearing and it was granted, thus the case I read today.

Tons of amicus briefs were filed from everyone and their brother. On this third appeal (the case I read) the court split 6-3 in favor of giving Cruz yet another trial, 11 years later.

The case is very complicated. And I only read it once. But Brian Dugan, who was already serving two life sentences for rape and murder, sort of confessed (not in court) to the crime Cruz was convicted of.

Dugan offered to confess officially if DuPage county wouldn't seek the death penalty. DuPage county wouldn't do the deal so nothing happened. Why would DuPage county make a deal? They already had two guys on death row. Case closed. 

There was no known connection between Dugan and Cruz. Dugan had kidnapped, raped, and killed at least two women. He also kidnapped and raped others, but let them go. They would all later identify him.

The evidence against Cruz was iffy. It was a lot of alleged statements to people in county jails and prison. There was no physical evidence connecting Cruz to the crime.

At his third trial, Cruz was acquitted on directed verdict. This happened in 1995. By then DNA was introduced and several witnesses recanted prior testimony. I didn't know this while reading this case. I had no idea where his case was in the system.

Before today, I had never heard of nor read the name Rolando Cruz. As I have quickly found out, his case has been rallied around by  the "anti-death penalty movement" crowd for a long, long time. I have written my views on the death penalty.

What I find most fascinating about what I read today was dissenting Justice Heiple's opinion. It was superbly written and amazingly persuasive. I love it when Justices take jabs at each other in opinions. They do it with such impressive wit.

The majority ruled the evidence of some of Brian Dugan's crimes could be admitted in Cruz's trial (my issue, sort of) even though Dugan, himself, wasn't going to testify. Justice Heiple disagreed vehemently.

Justice Heiple went through an exhaustive attack at Brian Dugan's confession. He called Dugan a liar repeatedly. He cited example after example of parts of Dugan's confession that were contradicted by the facts of the murder.

I haven't seen the room full of boxes in some basement where the entire record of all these trials is kept. But the Supreme Court had it all. Justice Heiple claims he reviewed all of the important stuff. And by the time I finished reading the dissent, I questioned if Dugan committed the murder.

Justice Heiple (well, his law clerks) did a great job of fact pulling. And had Justice Heiple been called to defend Dugan at a hypothetical trial for this murder, he would have gotten him acquitted. The refutation of the majority's conclusion based on fact was impressive. 

But as I was reading the dissent I kept asking myself "if he didn't do it, why would Dugan lie and confess?" He didn't know Cruz. He was already never getting out of prison alive, (two times over), plus a couple other multi-decade sentences. As Justice Heiple pointed out, "Dugan simply has no more time with which to pay his debt to society."

I kept reading and waiting for Justice Heiple to lay out an obvious motive for Dugan to claim guilt that wasn't his. There are yo-yos that walk into police stations and claim responsibility for some local unsolved crime. And the more media coverage, the more yo-yos. I really don't understand the psychology behind that. But, I am not a psychologist.

But this case was different. The State already had two people convicted and sentenced to death. The case was closed. Why bother if you didn't do it? It doesn't compute.

The reasons Justice Heiple came up with to show Dugan's motive to claim he did the crime were sadly weak. Dugan allegedly said he just wanted to mess with the State and take cases that weren't his. Also, once he claimed he killed little Jeanine, there was talk about him being somewhat of a celebrity in prison and even being asked for autographs. 

I don't know what the source of that last bit was. And I can't believe a sitting Illinois Supreme Court justice would put that in an opinion. Child rapers and murderers are not celebrities in prison. They are targets. And they are not asked for autographs. They are stabbed with pens.

In the end Cruz was eventually acquitted. DNA evidence excluded both Cruz and Hernandez, but could not rule out Dugan. Testimony was recanted. In other words, during the first two trials, witnesses for the State committed perjury. And the assistant State's attorneys probably knew it. In fact, the DuPage county State's Attorney probably knew as these prosecutions were brought during an election year.

DuPage county is very Republican and very white. Naperville is nice. It has good schools, big houses, wide streets, tons of shopping, a huge tax base, etc. But it doesn't have crime like this. When I first read the fact pattern, I was shocked to read this happened in Naperville. One wouldn't think something this heinous could happen out there. But it did. And the political pressure to make an arrest and convict someone must have been tremendous.

An assistant Illinois Attorney General assigned to fight an appeal from Cruz, resigned in protest because of the way the case was tried. She thought Cruz was innocent. Then Illinois Attorney General, Roland Burris, wasn't moved. This is the same Roland Burris now sitting in President Obama's former seat in the U.S. Senate. If you remember, Mr. Burris was not welcomed in the senate last year due to allegations of perjury and other wrongdoings.

As a side note, when I was in 4th grade (I think), I went to Roland Burris' office at the Illinois Capital building in Springfield for a field trip. At the time he was the comptroller of Illinois. Somewhere buried in a box I have a lovely Polaroid of the man.

How many innocent people have been executed because of cases tried this way? Perjury, prosecutorial misconduct, manufactured investigations and evidence, etc? This isn't an isolated case. And a sitting Illinois Supreme Court justice wrote there was more than enough evidence to convict Cruz...twice. He also had no problem with sentencing him to death.

Additionally, this same Illinois Supreme Court Justice wrote a scathing dissent declaring it was impossible that Dugan was the real culprit. I wonder how he feels about that opinion today. Because in 2002 better DNA testing showed Dugan was, indeed, the murderer.

Dugan's DNA was extracted from semen at the crime scene. In 2005, DuPage county formally charged him, 22 years after the crime. But Dugan had came forward claiming responsibility for the murder back in 1985 or several months after Cruz and Hernandez were convicted. All Dugan wanted was a guarantee DuPage county wouldn't seek the death penalty and he would confess, pleading guilty.

Did DuPage authorities ever investigate to learn if perhaps Dugan was the real bad guy and that they might have made a mistake? I highly doubt it. Again, they already had two on death row and a happy community.

Admitting that the system might have been wrong or that the trial was tainted with perjured testimony would be political suicide. Has anyone from a prosecutor's office ever been the first to claim the wrong person was convicted? Hell no. That's not how it works.

Did Cruz and Hernandez really need to be on death row for 12 years? Apparently political aspirations and prestige are more important than the lives of two innocent men. And no one wants to let the tainted trial cat out of the bag. By the time all of the government shenanigans were revealed, new elected officials were in office who could point their fingers at their predecessors.

The government doesn't re-open cases when they already have a conviction. The mindset of the government is that the defendant had his trial. The dissenting Justices also said the same thing. In fact one wrote, he didn't have a perfect trial because there is no such thing. But he had a fair trial. Two of them. End of story. Guilty. Guilty. Death. Death.

If Cruz's first two trials were fair, then our system is badly broken.

Dugan eventually entered a blind plea of guilty, meaning there was no plea deal made. Last year, Dugan was sentenced to death. But we aren't executing right now in Illinois, so Dugan is sitting in Pontiac, inmate number A60862. You can enter his name here and look him up.

And about Justice Heiple, he eventually became the Illinois Supreme Court Chief Justice;  until he ran into some problems and resigned. 

I take my hat off to the lawyers that never gave up on Cruz and Hernandez. It has to be damn near impossible to drum up passion and energy to work on a case when your client has been convicted and sentenced to death twice.

I have a feeling most of the leg work over the years was done by the Office of the State Appellate Defender. There are not a lot of attorneys at that office who handle death cases. The ones that do make up the Capital Trial Assistance Unit and they are dedicated. I met a few of them last October at a death penalty seminar in Springfield. Nice people but as you can imagine, quite haggered. In a good way, though.

The people that fight death penalty cases are not the same people that are politically and/or morally "anti-death." Although, I imagine those that fight the cases are probably not in favor of the death penalty.

"Anti-death" penalty folks don't want anyone executed. Death case fighters (lawyers) are those that don't want innocent people executed. Not every death case in every death state gets so much defense work put into it.

The innocence project doesn't take every case. They take the ones they feel the person on death row is innocent, thus their clever name. After all, probably most people on death row are, in fact, guilty. But as we have seen, some innocent people were put there by mistake and some on purpose.

I don't know how anyone could look at themselves in the mirror at night if they knowingly played any role in depriving someone on death row of a legally fair trial. The person looking in that mirror needs to be locked up, not locking other people up.

A perfect example is one of the cops in the first two Cruz trials. A lieutenant testified under oath, at least twice, that detectives immediately told him that Cruz said he had a vision of a little girl getting taken from her home, raped, and killed. Cruz allegedly knew facts about the case not disclosed to the public. Had that been true, that's pretty compelling evidence.

Turns out the lieutenant was in Florida when he claimed the detectives told him, in person, about Cruz's vision. The cops made it up. And a lieutenant corroborated their story by claiming they immediately told him about it. They all lied. They swore to tell the truth and then lied to a jury. Twice.

This case is an extreme illustration of some of the frustrations we defense attorneys face. If sworn officers of the law have no problems committing perjury, the system isn't fair. And if, as in this case, they were willing to lie about something this serious, imagine how insignificant a minor drug case is seen.

If you think lawyers are just money-hungry, heartless, BMW driving, $5 cup of coffee drinking yuppies...you're only partly right.

This story is a perfect example of lawyers that saved two lives. That's right. But for their tireless work, Cruz and Hernandez would likely have been executed before Governor Ryan stayed all Illinois executions.

How much money did these lawyers make? Well, the state guys make their very humble state salaries. Any of the attorneys from law firms did their work pro bono, meaning free.

This is a story about believing in a client and his case and never giving up.

I am still in awe.

As far as my position on the sleazy lawyer scale, I drive a Ford, have too much heart, make little money, and brew my coffee at home. However, I do own two Apple computers so I guess there is some yuppie lurking beneath.

www.schantz-law.com


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Clairification

I have received some comments about yesterday's post. So I want to make some clarifications.

I do not have a problem with citizens coming forward with information regarding a crime. Actually I encourage it. I do not consider someone that does this a snitch. Unfortunately, however, many around here do. And it can be dangerous.

What I call a snitch is someone that hurts someone else to better their situation. If you catch a case, man up and take the punishment. That's my opinion and I am entitled to it.

What's right or wrong, moral or immoral, just or unjust don't play a role in the gang play. I make no comment nor offer opinion. But in the court system we attempt to right the wrongs, apply morality, and be just. But sometimes the court system fails. And yesterday, in my opinion, it failed. Why? The wrong person is going to prison. But, by his own choice.

Unless you do my work, you cannot know how it feels to have a client whom you think is factually innocent being sent to prison. I can't even begin to describe how foul and awful it is.

You also can't know what it feels like to have to futilely attempt to console a crying, grieving mother. Did my hug and "I am so sorry" help? Did it make a difference?

And you don't know what's it like to doubt yourself by asking if it was simply an un-winnable case, or if I just wasn't good enough.

I imagine young doctors go through this. Eventually a patient is going to die. Naturally one's abilities will be questioned. But some people are just too sick to save. And some cases just can't be won. But which ones?

Last night I went and ran at my gym on a treadmill. And while running, I thought about yesterday's trial. I went back and forth. Bad case. Bad lawyering. Bad case. Bad lawyering. I put the case on as planned. It was a weak defense. But it was a plausible one. Was I perfect? No. Did I make mistakes? Several. But there is no perfect trial. That I accept.

Eventually the fact I hadn't slept or eaten much in two days caught up with me and I had to stop running. I had to eat something and chose bread.

This morning I woke up. I didn't feel really well. But I put on a suit and went right back to court. And next week, I will try my next jury trial. And the one after that. And the one after that.

www.schantz-law.com

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