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.

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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.

Father McCokeypants

I am a fallen away Catholic. One of my favorite representations of my faith is this:

The clergy sex scandals over the years disturbed me pretty deeply. But then you see a story like this, and even I’m pretty shocked.

This isn’t just a priest accused of a personal failing…he’s accused of possessing up to an ounce of cocaine in a safe in his house and dealing it with regularity from the rectory.

This just leaves me speechless.

This Week in Ridiculous Criminal Laws V – Fornication

Working off of a post by Windy Pundit it brought to my attention a ridiculous criminal law.

720 ILCS 5/11-8 “Fornication.” This means having sex with someone that is not your wife, if the behavior is “open and notorious.”

A quick spin through the annotated statute on this point shows that no cases have really been pursued in this area since the 40’s and 50’s in Illinois. But when they did, it was a doozy of antiquated racial and sexual mores not currently in vogue (I hope).

In People v. Potter 319 Ill. App. 409 (1943) the court was questioning what constituted “open” for the purposes of “open and notorious.” In that case, the neighbors knew of the comings and goings of a married woman to man’s home (whose own wife had left him already). Also, there was testimony that the woman bathed, shaved and cooed about her man in his home (although they were never seen in public together) by the man’s 14-year-old daughter. And while it wasn’t a crime for the couple to practice miscegenation, pointedly the court notes that the man in the case is white and the woman is black. The money quote:

“The conclusion is irresistible that the statute upon which this prosecution is predicated was designed to prohibit such public scandal, and disgraceful living together of persons of opposite sexes in such notoriously illicit intimacy; that which outrages public decency and has a debasing and demoralizing influence upon society.”

Really? Demoralizing influence on society? I know this case is literally from a different era, but I can’t help but laugh. And while there may be some today who still believe that it is a downfall of our society to have people living together and fornicating without the blessing of a marriage certificate (and certainly, only between a man and a woman), I can’t help but shake my head at this sort antiquated thinking.

Fornication (open and notorious, or secret and clandestine) is none of your damn business. Not you, Mr. Politician, not you Mr. Prosecutor, not you Mr. Nosy Neighbor. It’s sex, it’s private, it’s not harmful as long as it’s between to consenting adults (and yup, Windy Pundit, that’s any two people over 17) and it’s long time in coming that this ridiculous criminal law be taken off the books.

Jason Austin, Cop Killers and Prosecutorial Discretion

You’re probably read in the news that Jason Austin, accused cop killer of, had his charges dropped by the State’s Attorney Office. This is a miracle for any number of reasons.

1) He is accused of killing a cop. Cop killers are given NO BREAKS…in fact, all the rules are broken when it comes to their interrogation and case handling. Now, I know cops who would read that might say “Why no! We would guarantee that we pull of a pristine investigation in order to get a conviction.” To which I reply, sure…tell that to Andrew Wilson.

2) Prosecutors, god bless ’em, rarely exercise the sort of judgment that lets them dismiss cases. Call it ego, call it hubris, call it competitive drive…whatever, but I’ve had prosecutors look me right in the eyes, tell me they have no case, they’re going to lose, take it trial and watch it all happen like they said. Well, Ms. or Mr. Prosecutor, if that was all a waste of our time and resources, why did you do it? Exercise a little discretion.

3) This was a big media case. You’ve seen the coverage. Off duty police officer and girlfriend robbed and murdered in their car. Cop gets off a 911 call before he expires describing his assailant. It’s a tragedy, no doubt. But with the papers, talk radio, police and public baying for blood, to get a dismissal means one thing and one thing only.

They actually had the wrong guy.

But here’s why this bugs me. Clearly, David Weiner, attorney for Jason Austin, presented some compelling evidence that they had the wrong guy. The car the police had recorded leaving the scene on a pod camera (those blinking blue boxes on telephone poles), didn’t really match Austin’s. Plus, Austin’s car was in the shop at the time. Then, there was the supposed “admission” that Austin made about committing a robbery to a friend the night of the murder. Now, I don’t know the source of the person who told police he said it, but I’m going to bet a Andrew Jackson it was someone arrested that day who felt like they could “help” the police by giving a statement.

All of this fell apart like tissue paper. Dick Devine and the State’s Attorney’s office isn’t going to embarrass themselves bringing a shaky case…when the media spotlight is on. But when it isn’t…and trust me, the VAST majority of cases processed through Cook County get no coverage whatsoever…this sort of discretion is harder to come by.

If only prosecutors acted like all their moves and motivations would be exposed to the harsh light of media coverage in EVERY case, maybe more of my clients would get a fair shake.