Called it!

R. Kelly is a free man.  And you read it here first!  Well, probably not, and I certainly wasn’t the only one, but frankly, given the evidence, the witnesses and the celebrity (not to mention the good lawyering), it just wasn’t surprising to me that R. Kelly is walking the streets of Chicago tonight a free man.

In fact, I heard he’s filming a video somewhere tonight…I can only imagine the celebration!

This week in ridiculous criminal laws – Criminal Trespass to a Place of Public Amusement

It’s time to revive this puppy.  It’s been too long!  I’m really getting back into trying to post, if not every day, multiple times a week.  The push is definitely going to be for every day, however.

Alright, the point behind TWIRCL (I think you can get the acronym) is to highlight how meddlesome our legislature can get.  Now, I’m not really a libertarian.  I don’t believe in a completely limited government, or a free to be you, free to be me ethos.  I think that leaves a lot of people acting like assholes, and more than a few people left behind without certain forms of government assistance (schools, healthcare, uhh…sanitation?).  So, I’m not some drug war opponent or militia sympathizer thinking that all criminal laws are impositions on our free will.

However, I think a lot of what the legislature does is kneejerk law passing meant to mollify the public outcry of a recent shocking headline, or just to show that they’re tough on crime.  Or, it’s because the legislature just thinks that certain types of acts, already criminal, need a special tweak for punishment.  Or are afraid that the existing criminal laws don’t cover the potential criminal act.

The point behind any criminal justice system is that it should be simple, clean, and easy to navigate.  When you build in redundancies or try to make certain (already punishable acts) just more stringent because of a recent event, you aren’t being reflective, just reactive.

Which brings us to Criminal Trespass to a Place of Public Amusement.  Streakers!  Seriously, this is a crime meant solely for streakers.  Or party crashers of some sort. Trespass is going where you’re not supposed to (and you know so).  But this is a trespass crime for only certain areas.  Those areas include: athletic surfaces, stages, locker rooms, dressing rooms, or other places located at a place of public amusement.

CTTAPPA (this week’s ridiculous law…aww, you get the acronym) is a Class 4 felony.  For streaking!  With a fine not less than $1,000 and not less than 30 but no more than 120 hours of community service!  When normal trespass is a misdemeanor (and all those penalties could be applied within the discretion of the judge) this is just making something a felony for no (really good) reason.

So groupies, streakers, stage divers and jersey chasers look out!  You have a law specifically aimed at you! And if you aren’t careful, or forget to wear running shoes when taking the field to go yell at Bobby Howry (remember that last year?  Hilarious!), you might be charged with this week’s ridiculous criminal law!

Last Ditch Effort – The Jury Poll

Two interesting cases came down out of the Appellate Court recently, both about the fairly mundane, and usually unsurprising act of polling the jury.

A jury poll is taken after the jury has read their verdict.  If the defendant would like they can ask that each juror be “polled” and asked whether their verdict is a true and accurate reflection of their choice.  i.e. are you sure?  Are you really, really sure you want to convict this man?  In Illinois, this is an absolute right of the defendant, not discretionary.  Also, all parties in Illinois may ask for the jury poll.

The two recent cases, People v. Kevin Wheat and People v. Kevin Durant, are at different places in the appellate process, Wheat having been decided, Durant proceeding to the Illinois Supreme Court.

Wheat was about timing and a hasty judge.  The district court judge in Wheat apparently didn’t give the defense time to ask for the jury poll to be taken.  The case literally came down to a discussion of seconds, as in, how long does a significant glance take from a judge to allow you time to make up your mind.  The defendant claimed they got 2 seconds before the judge moved on, the judge (and the state) disagreed.  The Court decided that the judge was too flip with this decision and should have allowed the polling of the jury to go forward.  As a result, the conviction was overturned, and presumably a new trial is on the way.

The Court said in Wheat, “‘The opportunity to poll jurors is basic to our legal system, which requires unanimity among jurors. The purpose of the poll of a jury is to determine whether the verdict has in fact been freely reached and remains unanimous.”

The judge in Wheat also hurt his case by saying, after the defendant moved for a new trial and noted that he didn’t get to poll the jury, that this particular judge had never seen a jury “flip” on a poll.  He is right in that this would be extraordinary event, one that just doesn’t happen all that often, one that is hard to imagine could occur…and then it happened in Durant.

Contrary to the assertions of the district judge in Wheat, Durant is the exception that proves the rule.  Durant is about a murder trial in which, after the jury was polled, one of the jurors declared that they did not agree with the verdict of guilty.  Judge Vincent Gaughan (the R. Kelly judge) decided, without input from the defense, to send the jury back into deliberations.  The next day, they delivered a unanimous guilty verdict.

Now, consider what happened.  The jury said Mr. Durant was guilty, obviously with the one woman juror having second thoughts.  When given the opportunity, free from the pressures and confines of the jury room to dissent, she does.  Then, the judge essentially tells her to get back in there and get it right.  How can she not feel enormous pressure to cave now?  How can she possibly hold on to her position?  That jury wants to go home, she said she agreed with them, then she flip flopped.  Can you imagine the reaction when they got back in the jury room?

It is true that a judge may order a jury back into deliberations after a juror has expressed issues with their verdict.  However, when a juror completely disavows their verdict, that’s a lot different than expressing some doubt, or reluctance.  If a juror says, flat out, that they do not believe that this verdict reflects their actual choice, then the smart move for ALL defense lawyers is to immediately move for a mistrial.  No other option should be considered.

For a defense lawyer, this would probably be a once in a lifetime occurrence.  It surely isn’t taught in law school, and the poor reactions by most defense lawyers in this case is due to the absolutely flummoxing nature of the event.  However, from here forward, it should be clear.  Demand a mistrial, protect your record, and force both the judge and the state into a box where they have to defend a non-unanimous verdict.

For further reflection on this, check out the excellent article (quoted in the Durant case), “The Jury Poll and a Dissenting Juror:  When a Juror In a Criminal Trial Disavows Their Verdict in Open Court” John Marshall Law Review, 35J. Marshall L. Rev. 45, by Karl Moltzen.