Monthly Archives: June 2008

Incoming Searches – Calling All Assholes!

WordPress does a neat little feature where they show you what led people to your humble site. This week, I had someone find this blog through the search “criminal defense attorney AND assholes”. That is awesome. I hope they found what they were looking for!

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Musica Justicia – II

Alright, this week, I’m in a summertime mode. I’ve downloaded some new CD’s (eMusic is my life) and let’s see what’s on heavy rotation in my whip.

Artist: Brother Ali
Album: Shadows on the Sun
Genre: Hip Hop

Brother Ali is from Minneapolis, MN and aligned with the Rhymesayers crew (Atmosphere, Eyedea and Abilities, etc.). He’s got an interesting backstory…in that he’s an albino and partially blind. He’s got a great voice, forceful, articulate and angry. Plus he’s funny. Also, Ant, the great producer behind Atmosphere puts together most of the disc. One of my favorite tracks is “Forest Whitaker” where he talks about how “ugly” he is yet beauty is in the eye of the beholder.

Artist: Vampire Weekend
Album: Vampire Weekend
Genre: Rock

I didn’t really want to like this band. And it will be seen whether they end up doing continued meaningful work, of if they’re the Jack Johnson of the Ivy League indie rock set. Lots of hay is made of the fact that these tousle haired white kids met at Columbia in New York. And they play Paul Simon-ish wussy boy rock. But they’ve got good melodies. I’m thinking this will be on heavy repeat when I vacation with my family in a few weeks on the Outer Banks in North Carolina.

Artist: Titus Andronicus
Album: The Airing of Grievances
Genre: Rock

Besides sharing a band name with a Shakespeare play (and not well received Julie Tambor directed Anthony Hopkins flick) and an album title with a Seinfeld reference, this band shares a lot in common with early Get-Up Kids and Bright Eyes. That is, a raw emotionality that will get dismissed as “emo” and a rocking nature dismissed as “garage rock.” So the fuck what? It’s good. And it sounds exactly like what it is…raw early 20-somethings rocking out from the Jersey burbs. This reminds me of finding new bands in the early 90’s when I discovered 3rd Wave punk and the Lookout! Records catalog.

Illinois DUI Laws- I – The Initial Stop

Getting a DUI is the most common run in the average citizen is going to have with the criminal justice system. It affects celebrities (Lindsay Lohan), sports stars (Cedric Benson!), local hot shots (hello Walter Jacobson!), everyone. You can’t be too famous to get out of one and it’s such an easy crime for the police to prove they think it is a lockdown conviction. However, don’t think all is lost.

First, what is a DUI?

In Illinois, operating a motor vehicle unsafely while under the influence of either drugs or alcohol, is a DUI. With other drugs, such as marijuana, hallucinogens, or harder stuff, a blood test finding the presence of the drug in you while you were driving, plus evidence that it kept you from driving safely is necessary. Note that if you follow the link, this law is not in the criminal code, it is in the vehicle code. Illinois has a limit to the BAC you can have, which is .08 as it is in most states today.

Now, presumably, if you can operate the vehicle safely and have a BAC under .08 (that’s parts per thousand in your blood, essentially, how much alcohol is in your blood by mass over volume), you’re not violating the law. But if you cannot drive safely with a BAC under .08, you can still be charged with a DUI. It will simply be VERY hard for the State to prove it.

So, how does the State prove you are drunk? Well, there are three steps (and possibly a fourth, depending on how stubborn you are). The first is the preliminary breath test. This is the portable breathalyzer, the lie detector of the DUI stop. This little box is NOT scientifically accurate enough to be admitted into court as evidence, but it will be used by the police officer to establish probable cause. DO NOT BLOW INTO IT! The police officer will tell you that refusal to do so will result in the loss of your license. This is true. BUT SO WILL A DUI! So, you are always best off not hanging yourself at the start and refusing the PBT.

Second, the police officer will do a Field Sobriety Test. These tests, used to establish probable cause that you are indeed intoxicated, are again, not scientifically accurate enough to PROVE that you are drunk, but they are indicators that the police officer gets to use to figure out if you are. This includes the walk and turn (you pace off, heel to toe about ten steps, then turn around), the Horizontal Gaze Nystagmus test (when drunk, your eyes twitch back and forth when looking up and down, left and right, due to your inner ear trying to balance yourself because the alcohol in your blood is making the world “spin”) and the One Legged-Stand test (stand with one leg out in front of you). None of the other tests you see or hear about (alphabet backwards, number sequences, juggling) are of any use or widely used by police officers. Again, you may refuse a Field Sobriety Test as well.

If you fail your Field Sobriety Test you have given the police officer probable cause, not PROOF that you are intoxicated. During this phase and all others, your speech, your eyes (bloodshot? glassy?) your ability to stand unassisted or follow directions, all will be taken into account by the officer and recounted during your trial (and preliminary hearing, and motions to suppress). Upon failure of this test or the preliminary breath test, you’re going to jail.

Third, you will offered the real Breathalyzer. This will happen at the jail as you are being fingerprinted and photographed. DO NOT TAKE THIS TEST! Without getting too technical, the real Breathalyzer (in general use in the State of Illinois is the Intoxilyzer) uses fuel cells to determine the presence of ethyl alcohol in the water vapor you expel from your body. In Illinois the results of this test are rebuttable, that is, you the Defendant, can introduce evidence that the Intoxilyzer is a) not calibrated correctly, b) broken, c) not used properly, d) whatever else you can think of. In other words, if you take it, it’s not the end of the world. But, here’s the repeated advice…DO NOT TAKE IT! To bring in an expert and rebut all that scientific evidence is EXPENSIVE and time consuming.

Yes, the cops will tell you that not doing taking the Breathalyzer (or Intoxilyzer, whatever it is they have) is going to screw you. Yes, there will be a lot of pressure to do it. But, if you breathe in that thing, say goodnight, because now you’re going to be spending THOUSANDS OF DOLLARS on an expert to rebut the evidence you just created against yourself.

The last, possibly fourth way to prove that you are intoxicated is the blood sample. You CAN be forced to give blood, for a DUI, however, few officers will go that far if you simply refuse. However, if you are in a car accident during your DUI, you will most likely have blood taken anyway, if you’re lucky enough to survive it, and that will be preserved for evidence. Clearly, the best evidence of intoxication is blood (and in fact, states like South Dakota ONLY allow blood evidence at trial).

The thing is, a cop is not going to drive you to a hospital to do this, nor do many police stations have blood draw kits at the precinct. You’re going to just have no evidence if you refuse everything. Which YOU SHOULD DO!

Next week: The Consequences.

Bond Court – Assembly Line Justice

Bond court is depressing…not that being in a criminal courtroom isn’t usually depressing on some level, but bond court is just a meatpacking plant of justice.

To watch a bond court hearing is to wonder whether anyone is listening to each other. Now, I’ll give the judges the benefit of the doubt here…but I frequently wonder whether anything I’m saying means a damn thing.

The traditional bond court hearing involves each side making their case to the judge as to what bond should be set at. The actual length of time of your average bond court hearing? Less than five minutes. I understand that there are hundreds of these a day and the judge is not going to get into your life story. But these hearings are pro forma, to say the least.

First the state goes…and they’ll do two things. Read off your prior conviction record and whether you’ve ever failed to come to court…and what you’re charged with. If it’s violent, good luck. If it it involves a weapon, also good luck. If you’ve failed to appear before a judge before, good luck. If you’re currently on bond, then even more luck my friend, because you probably aren’t getting out, unless you have a serious bank roll.

Then I go. What do I do for you? I tell them that you have “long standing ties to the community.” This means your family lives here, you graduated from high school here, you’ve been here more than 5 years or so, and have a reason to stay. I’m here to try to convince the judge that you’re not a flight risk (or a danger to the community). If you’ve been a shooting rampage, or are a serial rapist, no hope for you. But usually, if your crime isn’t violent you should get a bond between $500 and $5000.

Now, Illinois does not have bail bondsmen. Only four states in the county do not, and we are one of them. What this means is that you put up 10% of the bond, if you get a D bond (detainer). There are also I-Bonds and recognizance bonds, neither of which require you to pay anything. We’re talking about D bonds here. You put up your 10% (say the bond is $20,000D, you put up $2000) and then, if you keep coming to court, you will get it back at the end of the trial. Oh, the county will keep 10% of that, thank you, for their own purposes.

Here’s the thing. If you’re at 26th and California, you might only “appear” in the courtroom on a closed circuit TV. Same thing at 555 W. Harrison (the domestic abuse court). Your lawyer, if you haven’t hired one already, knows little about you, even less if they’re a public defender. The whole proceeding is over in a flash, and the judge just throws out the amount of the bond. You, the defendant, are going to be either upset, or happy, or confused.

My clients rarely call me in time to make a bond hearing. Unless you get arrested with a family member, or were carrying my card already, how can you get a hold of me? I frequently find myself dashing all over the county trying to find clients whose family members have called me the day of their bond hearing. This is usually too late.

The lesson to be learned is this. There are no miracles worked at a bond hearing. Not your initial one. Later, your attorney can petition the court to lower the bond…and I’d say the success rate at this is about 65%. Better than half the time it happens, but it all depends on what you, the defendant, did.

The Roots of My White Sox Fandom

I am a White Sox fan. I live within walking distance of Wrigley Field. I never cheered for the White Sox prior to 2005. I never paid attention to American League baseball with the exception of when I lived with a few Bostonians in college. Here’s why.

I moved to Chicago in 2005 after law school. Upon arrival, one of my best friends from college, Mike, shortly thereafter moved back to Chicago from Washington D.C. He was a lifelong Sox fan. In a bit of a sad story, his dad, who died in a plane crash when Mike was very young, was a Sox fan, and Mike carries that fandom forward. When I arrived in Chicago, Mike made it very clear. There are no fence sitters in this town. Pick a side. North or South. Sox or Cubs.

Now, growing up I had a complicated relationship with baseball. My dad was an excellent baseball player and played Little League at a very competitive level in Chicago on the south side. He grew up in Evergreen Park and went to Brother Rice Academy, played baseball all throughout and still plays on the same softball team he joined 20 years ago in my home town.

I was expected to play Little League. I thought I had to be good at Little League. I sucked. I was afraid of the ball. I couldn’t keep my head in the game. I wasn’t particularly big, strong or tall. I’m relatively fast, and to this day, I’m a decent outfielder. But I’m a terrible batter. I did two seasons of Little League, and I was out.

I got into baseball cards as a kid, but not really baseball. I grew up in Wisconsin not far from Milwaukee and was a Brewers fan. Paul Molitor, Robin Yount, I remember Molitor’s 39-game hit streak in ’87. But I wasn’t a diehard Brewers fan. Didn’t go to a lot of games, and completely stopped paying attention to them between 1996 – 2004, my college years, as the Badgers took up all my sports interest and the Brewers sucked.

Something happened as I got closer to 30. All the talk of strategy and how baseball was a lot more complicated than it looked, suddenly I saw it all. I also started actually going to games more often (5 or 6 a season) and enjoyed that aspect of it far more as well. The pace didn’t bother me now that I wasn’t an addled adolescent. I realized that baseball was perfectly pitched to my sensibilities.

Mike made a compelling case. Although I can usually see both sides of an argument, I knew that when it came to this, I couldn’t wuss out. Pick a side. Mike sold me on the South Siders. Their history of not sucking, their more working class roots, and the fact that they weren’t that shabby that season. Turns out he was right. I wasn’t really bandwagoning, but it sure was nice that the first season I rooted for the White Sox, they won the World Series.

Two full seasons since, it’s still all good. Sure they sucked last year, but this year, they’re looking good. First in a division that many predicted to be the toughest in the AL, but so far has fallen far short of expectations. Decent pitching from Vazquez, Contreras and Floyd, along with an up and down Buhrle. Swisher has underperformed and the usual MASH unit of Konerko is a disappointment. But new players have stepped in (Quentin) and the bullpen has been on lockdown.

Now, the Sox and Cubs, both in first place, are in the Cross Town Classic. As I write this, Cubs and Sox are tied at 3 a piece in the bottom of the 8th. Goddamn, I love this game.

The Secretary of State (of Illinois)

I did an informal hearing this afternoon with a client of ours to get a temporary driving permit. This is done with the Secretary of State, the executive branch bureaucracy responsible for your license (aka The DMV).

This is not a fun…nor normal legal experience. Namely because I, the attorney, do most of the work for you beforehand. I prep you as to the right answers, the right demeanor and the best way to put your case forward. But during the hearing, I just sit there and try to clarify any answers my inarticulate client puts forth.

The office I went to was the Chicago West office, on 5301 W. Lexington. This is the DMV visible from I-290 as you head into (or out of) the city. Our hearing officer, a wizened old lady with tobacco stained fingers, spoke too loudly for the confined environment, and would alternately take a harsh, Spanish Inquisition style attitude, and then a kindly, if slightly soused, grandmotherly tone.

My client was great. He’s a simple guy, has a job boarding up houses after fires / Acts of God and needs this permit to work. He has a decent case, but a slightly shady driving record (and mostly while on the job rushing to a job site). Also, he’s got a history of drinking, which he rather too freely admitted to.

Still, he was very polite, lots of “Yes, ma’ams” and honest-to-goodness awshucksiness.

The real kicker to the whole proceeding? The Cross Town Classic is going on RIGHT NOW at Wrigley…and this old crone was listening to Rush Limbaugh. Jesus.

I’m Sorry Ms. Jackson

That folks, is a helluva win.

Dan Alexander and Chris Smith, civil rights attorneys here in Chicago, just got $7.7 million from a federal jury for a woman who dragged a police officer out of a smoking patrol car after an accident, and then ends up the suspect in a theft involving the other police officer’s service weapon.

This was the perfect false arrest case. The plaintiff, Rachelle Jackson, was essentially a Good Samaritan then forced to sign a confession by the police and admitted involvement in a crime she didn’t commit. She spent 10 months in jail, then had her case “thrown out,” although what that means is unclear, and then she sued. And won.

Now, the City of Chicago is certainly going to appeal, and while I have no idea if there are grounds for it, they’re most certainly going to file for remittitur (a reduction in the award). $7.7 million is a lotta “oops” money…but it seems like Ms. Jackson deserved every penny.

p.s. My employer was a partner with attorney Chris Smith at the Cook County Public Defender’s office.

p.p.s. I hope folks get the Outkast reference.