Monthly Archives: July 2008

Courthouse Casanova

Today I was put in a funnily difficult situation. I appeared for a client on a violation of probation. It was petty, he wasn’t paying the fine he was supposed to and had missed two appearances in front of his probation officer.

Now my client is a great guy…let’s call him “Frankie.” Frankie is a smooth talking, nice dressing, charismatic dude. Has a legitimate business, lots of friends, and has steered a lot of business my firm’s way over the years. He did something in the courthouse I have yet to see a defendant do before.

He hit on a prosecutor, right in front of me.

Now, only ten or fifteen minutes prior while we were talking in the hall before we went in for his hearing, he got the phone number of a girl waiting for the elevator. Seriously, he just walked over to her, smiled, said some things so softly that even though I was standing ten feet away from him, I couldn’t hear it. Then she smiled and gave him her number.

After the probation hearing (recommitted to probation and a tsk-tsking from the judge), we were standing in front of the bank of elevators at 26th and California. Two attractive young prosecutors, one white and one black, are standing about 15 feet away from us. Frankie leans over, elbows me and says in a completely audible voice, “Hoo boy, she sure is beautiful, isn’t she?”

Both of the prosecutors stare at me. I’m screwed. Do I say yes? No? Smile? High five him? I laughed and nodded and turned around. Frankie kept going!

“Sorry ma’am, I’m just letting you know, you are quite beautiful.” Neither prosecutor reacts, they just stare at him, and presumably at the back of my head. The elevator dings and they get on, going up, we get on a different one going down.

I have seen plenty of my clients get phone numbers in the courthouse, usually from girls they already know, other times just from sheer force of will. Frankie set the bar high today, though, for future courthouse Casanovas. The only way to top it, would have been to get that number.

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This Week in Ridiculous Criminal Laws IV – Fortification of a Building

So, we’re back. Please note that it’s been awhile, but I promise, TWIRCL is back with a vengeance!

Again, with this series I am trying to highlight the silliness, redundancy or unnecessary use of punitive means for non-dangerous behavior…hence, its ridiculousness.

This week in ridiculous criminals laws, 720 ILCS 5/19-5 “Criminal Fortification of a Building or Residence.”

This ridiculous law, found in the section on burglary and burglary tools, criminalizes the act of having a lair. Or a Batcave. Or a Fortress of Solitude.

Not really. This law specifically makes it illegal to put a “steel door, wooden planking, crossbars, alarm system, dogs or similar means” in the way of officers trying to bust your drug house. Now, this law does make it specific that it only counts if you are using that building or residence for “the purpose of manufacture, storage, deliver or trafficking of cannabis or a controlled substance.” So, drug houses and pot farms need only apply.

Here’s why it’s ridiculous. Say I’m a jewel thief. Or a hacker. Or I run a brothel. Then presumably my “fortifications” which include Rover, the ADT alarm system from the condo association, and the broom handle stuck in the sliding door are all legal! In fact, the steel door reinforcement, the Master Lock Security Bar, the killer Goldendoodle you got from the breeder and the motion sensor alarms you purchased are just fine and dandy.

This law is ridiculous. This law is a Class 3 felony which carries a 2-5 year sentence for violating (and is probationable). It is conceivable that you could be busted for possession with intent to sell cannabis, between 10 and 30 grams, which would be a Class 4 felony, and have the alarm system on your door would be a larger crime.

This law has been attacked for vagueness in People v. Rasmussen 233 Ill. App. 3d 352, but to no avail. It seems that there is some use for this, although presumably this is just another of those “tack-on” crimes that prosecutors love so much.

I had noticed in the past that on warrant entry forms used by the police that they note fortifications and the use of dogs (they even have little boxes to check off for “booby trap” and “attack dogs”). I had no idea what the purpose of that was until I discovered this ridiculous law. I have yet to see a client charged with it, but I suppose I should only give it time.

After all, if it’s on the books, why not use all the laws available, even the ridiculous ones!

Racial Profiling and “Consent” Searches

The ACLU and a number of civil rights organizations here in Chicago have released a report on racial profiling by the Illinois State Police in regards to traffic stops. In essence, blacks are “asked” if it’s ok to look around their vehicle three times more often than whites and Hispanics are “asked” twice as many times as whites if the ISP can just poke around. And you know what? It’s the whites with the drugs!

The results show that during consent searches, 8.85% of whites searched had contraband (pot, usually) on them, and only 5.06% of blacks and 1.12% of Hispanics have contraband.

Let me explain.

A consent search occurs when there is no probable cause or even reasonable suspicion to search your car. This means, in practical terms, that you’re speeding, a brake light is out, something traffic related is going on but nothing is arousing the suspicion of the officer otherwise. However, that officer has a bug up his butt and he wants to see what might be in that car. So he “asks” you. Why do I keep putting “asked” into quotes? Because only ironic air-quotes (picture me making air quotes while typing this) can capture the heavily fraught situation that is you being a minority and the police asking, politely, but without explanation, whether they can look around your car.

It is no small thing to stand up to a police officer, state trooper, sheriff, what have you. When one asks if they can look around your car, even a legally savvy driver may hesitate before stepping up and demanding to know why. That is exactly what the Illinois State Police is counting on. Yet, even though they search Hispanics like this twice as much as they search whites, they’re uncovering drugs in only 1 in a 100 searches? Seriously?

Let’s break down some other numbers from the Chicago Tribune story on this. There were 23,000 searches like this out of 2.4 million (?!) traffic stops by the Illinois State Police in 2007. That’s 63 “consensual” searches a day. Out of them, 18% of them revealed contraband. Depending on your orientation, you might think that a slightly less than on 1 in 5 hit rate is good for a cop, or as I do, think that’s pathetically low for an intrusion into your vehicle. Whatever happened to the United States where a cop poking around your business for no reason was unacceptable? Or were we ever like that?

If anything drives me nuts about conservative politicians, it’s that few are of the strong conservative values types actually think less government intrusion is a good thing. In other words, when its blacks and Hispanics getting searched and bothered for admittedly NO REASON WHATSOVER, it’s an acceptable risk in the War on (Drugs, Terrorism, Immigrants, Violence, You Name It). Even though the evidence is staring them right in the eyes that it’s whites who have more contraband on them!

Actually, I can explain this pretty easily. To an Illinois State Trooper, every single Hispanic and black person is suspicious…because they’re stereotyping. However, Illinois State Troopers aren’t stupid, and they recognize suspicious looking whites when they see them. So they have a higher hit rate with whites because they are more targeted (only stoners and tweakers are “asked” to be searched) than with the dragnet they use on blacks and Hispanics (all of them are suspicious).

I hope that Windy Pundit jumps on this a bit, since his grasp of statistics is far greater than mine.

Brett Favre and the Increased Homicide Rate

I may have lived in Chicago for the last three years, but that doesn’t mean I’m going to change my pro sports teams fandom that easily. I will never be anything other than a Green Bay Packers fan.

So I say it as a true Green Bay Packers fan…if Brett Favre comes back and plays for any other team than the Packers, there will be an increase in the homicide rate in Chicago, as I will be forced to go on a killing spree.

Interesting Stuff

Here’s what I’ve been reading lately…

A Public Defender describes a terrible Wisconsin Supreme Court ruling regarding sexually assaulting a dead person…and the difficulty that creates. As a native Wisconsinite (not a Wisconsonian, sorry Gideon, Cheesehead is also acceptable) this just makes me uncomfortable.

Mark Bennett at Defending People just finished a white collar criminal trial. As I am about to embark on a large Medicare fraud trial, I appreciate his ability to blog during his breaks!

Steven Gustitis at The Defense Perspective is running an amazing series of posts on the science and technology behind the Intoxilyzer 5000, one of the most widely used machines for testing alcohol for DUI stops. Amazing stuff!

Windy Pundit discusses Scott’s Law and his own unfortunate run-in with the Illinois State Police and the following legal twists regarding suspension of his license.

Sentencing Law and Policy discusses some recent articles on mass incarceration as a criminal justice failure. Hear, hear!

That’s a lot of drunk teens!

Illinois DUI Law – III – Motions to Suppress or the Pre-Emptive Strike

Many of my clients approach me no matter what the charge and ask the same question “Can you get it dismissed?”

What they really mean, is the Motion to Suppress, the Holy Grail of most criminal cases. This is the opportunity to cut the knees out from under the prosecution and bring the state’s case to a crashing halt. It also USUALLY but NOT always means the dismissal of the case against you.

So what is a motion to suppress evidence and quash arrest? Essentially, you, the accused drunk driver, are saying that there was no reason for the police officer, state trooper or sheriff to pull you over. If they had no reason to pull you over, then the arrest is invalid. If the arrest is invalid or the detention is illegal, then evidence gathered from that arrest is not allowed into court. In a DUI case, that means, if they had no reason to stop you, then the case will be effectively won.

See, most motions to suppress evidence (the breathalyzer, the results of your field sobriety test, the observations of the officer, that is the evidence you want knocked out) are lost. They are lost because the bar is set quite low on whether there was probable cause to arrest. This is where technology comes in.

Since a motion to suppress usually involves the word of you, the accused drunk driver, against the word of the (presumably) sober police officer…you usually lose. So hopefully there is a videotape of your arrest.

In many places, police cruisers have video cameras that automatically turn on when the wig wags (the lights on top) go on. But, and this is important for the Chicago DUI defendant, Chicago police cruisers do NOT have video cameras. Too expensive to install the damn things…or something. So, unless you’re pulled over by the State Police, or a smaller police force (Oak Park, Blue Island, etc.) you are out of luck.

The reason the videotape helps is that the police officer should be pulling you over for one reason…a traffic violation. That traffic violation is, in the case of a drunk driver, usually failure to stay in your lane, observe a traffic signal, failure to signal a turn, or something else petty. It can also be even more petty, like having out of date registration, or a bum brake light. These are all citable offenses, therefore the police has probable cause to stop you. The question then becomes, does that stop proceed to probable cause to investigate you for drunk driving.

Assume that you the accused drunk driver have not a) hit another parked car, b) been waiving a fifth of Jack out the window or c) been observed by the officer stumbling out of the Cabo Wabo Free Tequila and Rum Shooters Cubs Party Deck on Clark Street. Let’s say, you’re just driving down the road, minding your own business when all of a sudden the lights are in the rear view.

If that police officer has no reason to believe you have been drinking, then s/he should not start into a DUI type stop. So what leads them to believe you have been drinking? We’ve already gone over that in part I with the bloodshot eyes, the slurred speech, the difficulty finding your wallet or proof of insurance.

However, it’s the initial traffic stop that brings you to their attention and that’s what you hope the police officer may or may not have recorded. Of course, think about it, if the police officer turns on the lights, it’s because they NOW have reason to pull you over. And since the cameras don’t roll all the time, it’s most likely that the police officer doesn’t turn them on until after the traffic violation is observed. However, things like “failure to stay in your lane” particularly, should conceivably be able to be observed as you are being pulled over. It helps if the video shows you signaling properly, staying in your lane, etc.

It will still be the word of the officer that will be key. That officer will have to describe, with particularity, what it is that you did to violate the Vehicle Code, the City Code, or the Statutes of the State of Illinois, and therefore allowed them to stop you. If that officer can’t, then you will be found to have been illegally detained, and therefore not been legally arrested, and the evidence, all of it, will be thrown out. That is as big a victory as the DUI defendant usually gets.

p.s. It should be noted that things like audio recordings of the police officer’s radio dispatches, the video recording from the cruiser…these things are all destroyed after roughly 28 – 30 days in almost all jurisdictions. That means, CALL YOUR LAWYER RIGHT AWAY. I can’t tell you how many people call me after their first or second court date, which is weeks too late to get a hold of any evidence. Time is NOT on your side. Act fast, or lose it.

Read Part II of Illinois DUI Laws here

And Part I here

Indiana v. Edwards – Competency and the Right to Self-Representation

Competency in criminal law is a tricky concept.  Competency to stand trial is not the same as “insanity” when the crime occurred. Competency is whether or not you should be put to trial. Dusky v. United States established the standard by which you, the criminal defendant, are competent. You must be able to consult with your lawyer, in other words, be able to communicate with him and help yourself, and you must understand the nature of the proceedings against you. This means, you know that you are on trial, you understand that a court of law convened by citizens are going to put you in prison (or worse) if they convict you.

In reality, very, very few clients are incompetent.  There are two reasons.  First, standards are really pretty high that you are so incompetent that you can’t assist in your own defense. You must be quite mentally ill to not understand the proceedings against you or be able to assist in your own defense. It should be understood that the ability to “understand” the nature of the proceedings against you is not the same as being able to successfully or easily navigate the legal system.

The second is that in reality, the justice system doesn’t want people to not be held responsible for their actions. Local Chicago readers of this blog might remember the Jeanette Sliwinski case. Ms. Sliwinski decided to commit suicide by driving her car full speed through numerous intersections until she caused a triple fatality at a busy Northside intersection. She killed three young men on their lunch break (they worked for Shure Inc., an audio equipment company one of my good friends works for, he knew all three of the victims). It was decided that she was competent to stand to trial, even though at the time, it seemed that she really wasn’t. This sort of thing happens all the time. A person would appear, to the lay person, or the newspaper reader, to be absolutely nuts…but they aren’t in the eyes of the psychological professional, or by the standards of the law.

Which brings us to your 6th Amendment right to counsel. Everyone has the right to a lawyer in a criminal proceeding. Faretta v. California established the Constitutional right to be your own lawyer. As you have probably heard, the person who represents themselves has a fool for a lawyer. And let me just say, that in my own experience, 90% of people who want to represent themselves are generally mentally ill. Ask any public defender, prosecutor or judge who has spent any time in the system. The pro se lawyers are of one of two general types. One, is very, very nuts. The other, is pretty smart, but not smart enough to prevent lasting damage.

This finally gets us around to Indiana v. Edwards. This recent case by the Supreme Court at the end of their recent term decided that you can be competent to stand trial…but not competent enough to represent yourself as a lawyer.

In practical terms, this is probably a godsend to prosecutors and judges who have to deal with pro se defendants clogging up the system with frivolous motions and ridiculous defenses. On the other hand, public defenders are blanching at the prospect of a host of new clients. Generally the mentally ill are marginally employed and will only have the resources to hire a lawyer if their family does. They are distrustful, difficult and leery clients. It is going to strain public defender systems already at the breaking point.

It also calls into question the current competency standards. It seems to admit that the competency standard is both high and low at the same time. i.e. it’s hard to be crazy enough to not know what is going on around you, but it’s easy to be crazy enough not to be able to navigate the legal system. I understand that the legal system is complicated…it takes years of school and then years of experience to even start to master it. But when the Supreme Court admits that you might not be “crazy” in the eyes of the law for your actions but “too crazy” to flex your Constitutional rights to represent yourself…then something seems to be amiss.