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Back Into It…

Man, I’ve missed this. My brief foray into a new area of law was…less than thrilling.

So, I’m back. Criminal defense and happy to boot.

I have a trial coming up at the end of the month. Aggravated battery of a peace officer. I think I have a 70% chance of winning. If I lose my client is probably sentenced to probation since it’s a first time offense and he’s only accused of kicking a cop. But he will definitely be deported. That’s not a fun outcome. I’ll keep you all posted as to the outcome.

I also have a client who was picked up in a brawl in a funeral home. He wasn’t brawling, in fact, he was almost a quarter of a block away when he was stopped and arrested. The preliminary hearing for that was fantastic…15 people arrested in the melee, at least 10 lawyers standing along the wall, all nodding to each other “You’re here for the fight? Me too!” and then everyone was indicted. It was a circus.

So, I’m going to be consistently posting, don’t worry!


Back in the Game

Well, that didn’t take long…I am back!  Regular posting to resume shortly….and my oh my is there a lot to talk about!

Light Posting…New Beginning

Sorry folks for the light posting. But just as I got into this whole thing…well, I received a new job opportunity that is going to take me away from criminal law for awhile. I would still be interested in posting around here…so I will, occasionally.

However, my employer is taking over posting on this site, Nick Albukerk. He’s a former Cook County Public Defender and a criminal defense lawyer for 15 years. I’m catching him up on the technology, but it can’t be that hard!

So, for right now, I’m taking a bit of break. I’ll be back, but not as regularly as before.

Thanks for everyone who responded to this blog, and I hope that I helped people along the way.

-=Rob Deters=-

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!

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.

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Transvestite Bank Robber Masked?

I’m just rolling this one around in my head.

A man robbed a bank a few days ago in Park Ridge while wearing a dress.

Now, according to the article, at gunpoint he ordered two employees to empty a safe and herded them into a bathroom where he flex tied them and then left. He was reported to be wearing a dress and a big pink floppy hat.

What I think is clever about this is that he may not, for the purposes of the statute, be disguised. Generally, most state statutes for aggravated assault (threatening someone with a gun) while disguised (such as wearing a mask, hood, bandanna) is an enhancement, i.e. you get in more trouble. But here, he didn’t cover his face, he just dressed like a woman. Presumably, you would still be able to pick him out of a line up.

Speaking of which, would a fair line up have all the people in it dressed in drag?