Monthly Archives: September 2008

Criminal Law Blawg Crawl

That’s what I’m going to call my link dump from now on!

A Public Defender writes about the same thing I did regarding your freedom to leave. Apparently, in Illinois and Connecticut, when police approach you…just get up and go!

ECILblog (Now with more DUI!) points out the difficulty of spelling legal terms.

Apparently, you can batter a police officer by farting in his general direction. I believe the “who smelt it dealt it” defense may be employed for the first time in a court of law.

Simple Justice points a great magazine article about how journalists may be the first line of defense against wrongful convictions. Having worked for the Wisconsin Innocence Project, I can say that the media can be both a powerful tool and a crushing force for or against your client.

MarkThompson in Iowa City lays out how to do the walk and turn. I took the Illinois DUI Academy CLE course where we learned how to do all these tests…and that weekend I went to a bachelor party in Wisconsin. Needless to say, I tried out all the tests on my fellow party goers…and few of them were able to pass!

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Preferential Treatment and the Chicago Police…Reversed?

Last Thanksgiving I saw the broken glass and swept up evidence of a fatal crash only a few blocks from my house. Two young men were killed at a T-intersection on Damen Ave., at Hamlin Park, in front of the softball fields I walk the dog around.

An off-duty police officer, John Ardelean, crashed into two young (Hispanic) men from Cicero around bar close.

In February of 2008, Judge Donald Panarese dropped the charges for lack of probable cause. At that time, he said that “assumptions” were ruling the day, not facts, and the prosecutors hadn’t made their case.

Some of the facts that are known are this. The police officer was given 6-8 hours to sober up before he took a breathalyzer…on which he still blew a .032. There is a video tape showing Ofc. Ardelean drink five shots of booze and three beers in under two hours and only minutes before the crash. Also he appears to leave the bar with bottle of beer in his hand.

Now, witnesses at the bar said two things. Ofc. Ardelean did not appear to be, act or look drunk. Also, some of the shots were water. Really? He was pounding back shots of water with his buddies?

This case is simple. A Chicago Police officer was given the biggest break of his life by his own comrades. He was allowed to sober up for 6 hours prior to taking a Breathalyzer, essentially destroying evidence by letting his body process the alcohol that would have proven he was driving drunk.

Well, the Cook County State’s Attorney’s office got an earful and has decided to reinstate charges against Ofc. Ardelean. They claim that a new video, showing a longer sequence of time where Ofc. Ardelean is drinking means they have a better case. It should be noted that the judge in the preliminary hearing saw no videotape of Ofc. Ardelean drinking at all.

Ofc. Ardelean, from a defense counsel’s perspective, has a good case. Apparently numerous witnesses to back up that he was either pretending to drink, not acting drunk and did not appear intoxicated. He followed the first two rules of a DUI stop, in that he refused a field sobriety test and, technically, a Breathalyzer, although, what he really got was UNBELIEVABLE preferential treatment.

This case may have reasonable doubt written all over it. But there’s also two dead young men, a damning video tape. Ofc. Ardelean should be thinking more along the lines of Anthony Abbate rather than R. Kelly.

A Bad Day for the 4th Amendment

Any criminal defense lawyer will tell you that most days are bad for the 4th Amendment. We see bad law, bad rulings and an overall erosion of your right not to be searched and seized without probable cause every day.

So when the Illinois Supreme Court comes along and whittles a little more of it away, it’s not a surprise.

People v. Cosby is a consolidation of two cases, Cosby and People v. Mendoza. Both of these cases involve traffic stops and prolonged detentions.

Generally speaking, you cannot be held by a police officer without either reasonable suspicion or probable cause of you having done something wrong. During a traffic stop, the police officer has usually seen you do something wrong to justify the stop (I say usually because although the police ALWAYS say they saw you break a traffic law, we all know this is sometimes a convenient fiction). Therefore, the stop is justified and the duration, purpose and intrusion of the stop is justified by the criminal act observed.

So let’s say you break a traffic law, and you’re not waving a gun or a baby out a moving car window. That traffic law is usually a misdemeanor or even solely a citation, so the detention and purpose of the stop is governed by the seriousness of your actions. i.e. the police CANNOT search your car because you fail to signal. There’s no reason for the police to believe there are drugs or guns in a car because you are a poor driver.

But this is all a sham. The police, once they approach your car and look at you and your passengers, can now try to figure out a way to get inside and poke around. Here’s how they do it. They decide you look high, bloodshot eyes, shifty maneuvers in the car, fumbling with your license or insurance, the odor of marijuana, a gang affiliation sign of some kind (in Mendoza the police officers said that a red bandana hanging from the rearview mirror was a sign of gang affiliation). Whatever it takes for them to come up with “articulable” suspicions, or even better probable cause. Of course, probable cause would be direct information that a crime had been committed, which would be like seeing a gun, or a bag of weed itself.

However, let’s say the police don’t see any other criminal activity and could not justify entering your vehicle. This leaves them with one last option. Asking you.

You’d be amazed (if you’re a lawyer reading this, you are not) at how many people, with drugs / guns / dead hookers in the trunk consent to a search. And the reason they consent is the very reason the ruling in a case like Cosby is so difficult to deal with as an attorney. People consent to searches of their car when they should know better…because they don’t know better. They don’t realize that when an officer ASKS you, you get to say no. The reason people consent is because they don’t actually think that they are being ASKED they are being ORDERED.

In the case at hand, both Cosby and Mendoza were stopped for traffic citations. The officers returned paper work to the drivers then asked to search their cars. The court ruled that at this point the drivers were “stopped” again. The question was, was this one long stop, or two separate stops, one for the traffic citation, and another, separate stop, that was essentially a consensual search. Both Cosby and Mendoza agreed to let the police search their cars, turning up some crack and a gun respectively.

The court held, in a 4-3 split with some strong dissents, that the second “asking” of the drivers to search their cars were not a “seizure” within the 4th Amendment. The long and short of it, is that these drivers were free to leave and when asked if the officers could have searched the car, could have said no and been on their merry way.

No way. No way in hell did these drivers understand that, know that, or could have done that. The standard by which the law considers you, the average person, to be “seized” by the cops, is when you do not feel free to leave. Certain things the cops do make you not feel free to leave. Guns are drawn, a whole lot of them surround your car, their emergency lights and sirens are on, you are ordered to place your hands on the wheel…things like that.

What the llinois Supreme Court seems to be doing (while denying that it is doing it in the same breath) is applying the Mendenhall standards as a rigid formula for seizure. United States v. Mendenhall, 446 U.S. 544 (1980) is a Supreme Court case laying out the general parameters of when a person is “seized.” Illinois Supreme Courts have been pretty much in lockstep with U.S. Supreme Court (much to the dismay of defense lawyers) for years. Mendenhall lists factors such as 1) the threatening presence of several police officers, 2) the presence of a drawn weapon, 3) language and tone of voice that suggests compliance is necessary and / or 4) touching of a person. Mendenhall goes on to state that this is not an exhaustive list of factors regarding whether you are seized…suggesting, obviously, that other factors come into play.

Here, in each stop, there were only two officers, no touching, and depending on whom you believe, little forceful language. In the Mendoza case one officer admitted to drawing his gun, but not “displaying it” to the driver. This is unbelievable on its face.

The defense, in both cases, argued, however, that the two police officers “flanked” the vehicles in question, at night, and asked for permission to search immediately. The defense’s position is that these people in these cars simply did not feel free to leave, and the searches should have been pursuant to the safeguards of the 4th Amendment. In other words, don’t let the police get away with a fishing expedition.

The Illinois Supreme Court disagreed. The State argued, successfully, that the stop was not prolonged. Obviously as a practitioner, prolong that stop as long as possible. Get the facts out as to how long the whole thing took. In Cosby the testimony was that the officer immediately asked for permission to search and was granted it. Get this stop to take forever, and you’ve got a better motion to suppress.

The dissent states it plainly…for it is plain. Cosby could not possibly have felt free to leave. The Illinois Supreme Court rigidly applied the Mendenhall standards, while claiming it was not. Instead of looking at the totality of the circumstances, the court just felt that once the officer handed Cosby his proof of insurance back, his stop was over, and that immediately afterwards, Cosby could have just driven off.

Not in this lifetime he wouldn’t.

Bad Lawyers

A pair of news stories today that don’t give lawyers that sterling reputation we’ve earned over the years…cough…ahem.

Stuart Levine, who admitted to cocaine romps and other hi-jinks in the Tony Rezko trial was disbarred today for overall sleaziness.

A far less salacious, but no less unethical issue, is that of Scott Robert Erwin who was charging his client by the lap dance.

Now, Stuart Levine had personal demons that caused him to spend the night doing crazy drug binges…but Mr. Levine has a lot more ‘splainin to do. It’s easy for an attorney to talk about drugs and alcohol, lawyers have one of the highest addiction rates of any profession, but strippers in the office? Working off their fee?

Ironically, barter isn’t exactly unheard of in the legal world. When my dad was in private practice he had a client who couldn’t pay his bill. My parents had just built their house and had a gun metal gray front door. My dad’s client worked in a body shop and offered to paint it. So my dad had him color it Camaro Red (the Chinese paint doors red as a good luck symbol) and that satisfied the tab.

Of course, painting your house and taking your clothes off…different ends of the ethical scale.

How Not to Plead Guilty

I pled out two young gentleman today. I don’t like doing this, it’s not why I’m a lawyer. I do understand the need to explain to you the pros and cons of pleading guilty…but really, I’m just holding your hand through the proceeding. Trying a case, putting the state to the test, that’s the stuff lawyers like to do. Pleading you out? Not so much.

Today, a client of mine charged with gun possession pled guilty and received one year of probation. This case was so bad for the state that they dropped FOUR additional charges against him, including three Class 2’s (the remaining charge was only a Class 4). I told my client we could fight the case. The state’s case was not very strong.

My client had been offered the probation at the last court date. He thought about it for a month. It was explained to him then, then explained to him again today. He agreed, it was a good deal. He also has to get his G.E.D., something I have no problem telling my clients to go do. He agreed to take it. We filled out the forms, I spent a good 20 minutes with him, getting the plea ready and explaining to him all the parameters.

We stood in front of the judge. It takes about ten minutes or less, especially if you have a fast talking judge, to get a plea over with. He agreed to everything the judge said. AS WE WERE WALKING OUT OF THE WELL (this is the area in front of the judge, beyond the gallery, where only lawyers, defendants and bailiff’s sit) my client asks me “How much to fight the case?”

WHAT! I was shocked. I sat him down. I looked at him and said, “Ten seconds ago, you pled guilty. Now you want to fight it? I asked you, repeatedly what you wanted to do today.” He looked at me and said, “Man, I don’t wanna do no drops. I smoke, man.”

My client didn’t want to take his deal so he could keep smoking weed.

Needless to say, I spent a good fifteen minutes explaining to him how difficult it would be to withdraw his plea, how his next deal (which there wouldn’t be) would be terrible, and how, although we told him before we could fight the case, if he LOST, he was going to go down, probably for a year.

He shrugged, then agreed that he should have taken the deal…the one he took. Looking back on it now…I’m thinking he might have actually been high right then and there.

GPS Trackers on Chicago Police Cars

One of the problems I have as an attorney is proving a police officer is lying.

Technology is great for two reasons. People trust it. Thanks to shows like CSI there is a perception that technology is both uncontrovertable and omnipresent. Second, people assume that it is neutral. Video tape, fingerprints, DNA, they don’t take side, they just present facts.

Therefore, it’s unsurprising to me that the Chicago Police force objects to putting cameras in their cars, as well as installing GPS trackers.

Well, they lost the GPS battle. Now Chicago police cars are ‘pinged’ every 15 seconds to determine their location. In addition, the ping can tell if the car is parked, idling, or moving and how fast, whether it has its lights and sirens on, whether someone is in the passenger seat, the doors are opened, etc. And what are the police complaining about? That they won’t be able to take naps on the job.

The resistance to cameras is simple. The police will be recorded not doing their jobs properly. It’s why when I have suburban police forces with cameras in their cars…they’re frequently “not working.”

This is not a coincidence.

Now, as a practitioner, and to other practitioners, I say, if there’s a question as to whether you think certain cars were either at the scene, or arrived or left early, or you have any questions about this at all (and these GPS trackers are on undercovers as well as squads, I believe), then go to the OEMC on Madison St. and subpoena these records! I haven’t had the need to so, but they’re going to be very convincing, I predict.

Cross-Racial Identification – Can Whites Tell Anyone Besides Themselves Apart? (And Vice Versa)

The ABA recently issued a resolution on cross racial identification urging states to allow defendant’s to get a jury instruction when a cross-racial identification is made in a criminal case.

Social science (and years of criminal lawyers personal observations) confirms that identifying across races is harder to do than within races. In other words, whites identifying blacks…can’t do it that accurately. Going back across the color line, blacks have a harder time identifying whites…but they aren’t as inaccurate as whites are.

By far, the biggest reason for wrongful convictions is poor eyewitness identification. Two reasons for that.

First, eyewitnesses are actually REALLY BAD at performing their duties…namely because witnesses (not victims) aren’t usually paying great attention and victims are not focusing on their attacker necessarily, and are under (understandably so) extreme stress.

Second, juries love eyewitnesses. There is nothing more powerful than either a witness or a victim pointing at a defendant at the table and saying “I saw him do it.” Unfortunately, it’s also one of the least reliable of all forms of evidence and yet our own personal experience is usually that you would trust another person making an accusation that grave.

Here’s the thing. First of all, whites especially have a hard time identifying any other race than their own. When I worked for the Innocence Project at the University of Wisconsin, I was interviewing a a black family who were witnesses to a crime. Their description of the assailant was remarkably detailed, with the mother and the aunt arguing over his specific skin to a degree of subtlety I would never be able to articulate. I’m not blind, but if asked to describe a black person’s skin color, I tend to fall into the white person’s trap…either light, or dark skinned. These women were arguing over butternut, red a wide variety of names and descriptions that while I could identify them, I would be hard pressed to describe them.

The reason for this is rather obvious. I can tell Polish, Germans and Russians apart by their facial structure (Poles are round egg heads, Russians get pointy noses and tucked in chins, Germans are more angular). I would guess this identification ability would be limited among blacks. Although they might notice the difference, they wouldn’t necessarily be able to describe it or know what it means. Likewise, blacks can tell from which regions of Africa or the Caribbean, the skin tones and hair types, etc. that help them classify their racial types. I may notice those differences, but except for North Africans and the Sudanese and Ethiopians, I don’t think I’d easily describe various African American facial features and skin tones.

What this means is that juries need to be told this. There are two ways to do so. One is with an expert witness. But really, who would be an expert on this? It would have to be either a sociologist used to describing and dealing with different racial types, or a psychologist who can talk about visual and memory recognition. Given the limited resources of most defendants, this type of expert is going to be unavailable.

A better option, and the one recommended by the ABA and wholly endorsed here, is to give a jury instruction, when necessary, informing the jury of the difficulty with cross-racial identification. Of the few states that give them, I like New Jersey’s the best:

“You may consider the fact that an identifying witness is not of the same race as the defendant and whether that fact might have had an impact on the accuracy of the witness’ original perception and the subsequent identification.

You should consider that in ordinary human experience, people may have greater difficulty in identifying members of a different race.”

I haven’t had a lot of cases involving cross-racial identification (in fact, when I do, it’s usually the cops identifying my non-white client). However, I would urge for an instruction based on this heartily in court.

Pithy, to the point and covers all the bases. I hope Illinois gets on board with this. Given our state’s poor history with wrongful convictions, it’s a necessary step to ensure that justice is done for all.

Hat tip to Michelle for the resolution.