Samuel Partida, Jr. Criminal Defense Attorney, Founder of IllinoisCaseLaw.com

Criminal Nuggets | A Criminal Law Podcast

Criminal Law Podcast
Criminal Nuggets | A Criminal Law Podcast

Description

Smart lawyers know the caselaw. Here, practicing attorneys are injected with all the latest criminal nuggets of valuable legal information. Listeners walk into criminal court immune from ignorance on the latest decisions. The tidbits and key points Illinois appellate judges are making are no longer hidden in voluminous text. For the first time in their careers, practitioners don't have to invest the enormous amounts of time usually required to sift through hundreds of pages of legal text. Now, their ears serve as the portals to vast, instant knowledge. Audio law learning not only will make you the smartest lawyer on the case, you will also have fun! And its all FREE.

Episodes

What Constitutes Probable Cause For A DUI Arrest In Illinois?

Nov 20, 2018 11:25

Description:

 People v. Williams, 2018 IL App (2d) 160683 (October). Episode 558b (Duration 11:25)

Challenging this DUI traffic stop gave us a reason to review exactly what it takes for police to find probable cause for a DUI arrest in Illinois.

Probable Cause For DUI Arrest in Illinois

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  The Stop

Around 1 in the morning officer sees a car with the left-turn arrow activated. It then proceeded straight through the intersection. The car then lunged into the intersection, paused, and then continued through into the parking lot for the Elgin Mall.

The officer stopped the car.

DUI Indicia

Defendant’s speech was “kind of mumbled, slow and slurred,” and he smelled an alcoholic beverage “coming from [defendant’s] person.” Defendant advised the officer that he had come from a bar—JB’s.

Defendant said he had consumed four beers.

DUI Investigator Arrives

Suspecting that defendant might be impaired, the first officer called a second officer to the scene. The second officer was more experienced in DUI investigations. The second officer arrived a few minutes later.

The DUI investigator testified that he spoke with defendant and asked him to step out of the vehicle. Defendant emerged from the vehicle without stumbling or falling, but he swayed as he stood outside the vehicle.

The second officer also smelled the odor of alcohol on defendant. He also noticed the defendant’s eyes were “red, bloodshot, glassy, watery.”

Defendant refused to perform field sobriety tests. Defendant said a football injury prevented him from performing the tests. He also claimed that he could not walk a straight line sober.

Defendant was then arrested for DUI.

The Car Search

The car was searched and police discovered what appeared to be cannabis pipes. They still had a little cannabis inside them.

No Fields, No Blow But Guilty

At the station defendant refused to take the breath test. 

The jury found defendant guilty of the three charged offenses. Defendant was sentenced defendant to an 18-month term of conditional discharge and 240 hours of community service.

Issue

Defendant contends that there was no probable cause to arrest him for DUI.

DUI Probable Cause

“Probable cause to arrest exists when the totality of the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime.”

A person is under the influence of alcohol when he or she is less able, either mentally or physically, or both, to exercise clear judgment, and with steady hands and nerves operate an automobile with safety to himself and to the public.

In People v. Wingren, 167 Ill. App. 3d 313, 320 (1988), this court observed that “[p]robable cause to arrest a motorist for DUI has been commonly established by the testimony of the arresting officer, in spite of the defendant’s contradictory testimony, that the motorist had about him or her the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes.”

Generally, these observations are supplemented by other observations apparent to the officer or inferred from his observations such as speeding, weaving, erratic driving, driving on the wrong side of the road, being stuck in a ditch or, as in the case at bar, being in a vehicle which is stuck in the mud.

People v. Motzko

Defendant’s reliance on Motzko is misplaced.

See Episode 347 – People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (defendant wins his motioin to supporess no probable casue for DUI). 

Here, the trial court’s determination that there was probable cause to arrest defendant for DUI was not based solely on the odor of alcohol, defendant’s slurred speech, and his bloodshot eyes. In addition, defendant improperly proceeded straight through the intersection when the green left-turn arrow came on.

Not Completely Incapacitated By Alcohol

Defendant notes that he had no apparent difficulty maneuvering his vehicle.

However, even a conviction of DUI does not require proof that the defendant “was completely incapacitated by alcohol.” People v. Tatera, 2018 IL App (2d) 160207, ¶ 29. The prosecution need prove only that the defendant “was impaired by alcohol *** to the extent that it rendered him incapable of driving safely.”

See Episode 498 – People v. Tatera, 2018 IL App (2d) 160207 (May) (bad HGN test inadmissible but jury could still consider defendant’s inability to follow instructions)

See Also

Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI & Defendant Couldn’t Follow Directions During The HGN)

He Ran A Red Light

Driving through a red light was evidence that defendant lacked the mental clarity to operate his vehicle safely.

Yet, contends that his “one instance of ‘poor driving’ was fully explained by the condition of his vehicle.” However, other than defendant’s self-serving statements, police had no reason to believe that defendant’s vehicle was not in good working order.

While defendant may offer innocent explanations for his behavior, that does not prevent the police from acting on their well-founded conclusions.

After all, the assessment of probable cause is based on the totality of the facts, and a reasonably prudent person would be aware of a defendant’s incentive to fabricate an innocent explanation in order to avoid arrest and prosecution.

While We Are At It…

Although defendant offered an excuse—a football injury—for his refusal to perform tests, but this excuse did not negate probable cause.

Defendant contends, however, that the evidence of his guilt was insufficient because he was able to drive his car through the intersection without weaving or jerking, he activated his turn signal, he properly pulled into a parking space, he exited his vehicle without hesitation and without stumbling or falling, and he was able to communicate with the officers.

Defendant’s argument is without merit. A motorist’s ability to perform a number of tasks without any indication of impairment does not necessarily create a reasonable doubt in a DUI prosecution. 

Plus He Was Swaying

Michael and Bajak also observed defendant swaying.

That observation is a factor supporting the trial court’s conclusion that there was probable cause to arrest defendant for DUI. See People v. Anderson, 2013 IL App (2d) 121346, ¶ 25.

Refusal Counts For Something

Furthermore, defendant’s refusal to perform field sobriety tests was probative of impairment. See Tatera, 2018 IL App (2d) 160207, ¶ 28 (listing defendant’s refusal to perform any field sobriety tests among factors contributing to conclusion that evidence was sufficient to sustain defendant’s DUI conviction).

Holding

We therefore conclude that there was probable cause to arrest defendant for DUI.

That conclusion disposes of defendant’s argument that the evidence seized during the search of his vehicle should have been suppressed. We note the defendant challenge the search of his vehicle after his arrest. There was no Arizona v. Gant challenge. 

Accordingly, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty of DUI.

See These Older Cases

In People v. Weathersby, 383 Ill. App. 3d 226 (2008), we affirmed a DUI conviction on the basis of evidence similar to the evidence in this case. In that case, the defendant’s speech was “thick-tongued,” his eyes were glassy, a three-quarters-empty bottle of malt liquor was found in his vehicle, and his breath smelled of alcohol. The defendant also refused to take a breath test.

Here, defendant’s “eyes were glassy and bloodshot” and that his speech was “thick-tongued and slurred.” See Wingren, 167 Ill. App. 3d at 320 where probable cause to arrest a motorist for DUI has been commonly established by the testimony of the arresting officer that the motorist had about him or her the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes. 

The odor of alcohol on a defendant’s breath and his inadequate performance of a field sobriety test do not constitute reasonable grounds to believe that the defendant was driving under the influence. See People v. Boomer, 325 Ill. App. 3d 206, 209 (2001) (officer lacked probable cause to arrest defendant for DUI where defendant was involved in accident, admitted drinking, and had the odor of alcoholic beverage on his breath).

This Is Probably Now The Law

Episode 294 – People v. Day, 2016 IL App (3d) 150852 (January) (no probable cause for this DUI arrest, defendant passed the FST’s and he was driving nearly perfect). Where a defendant admitted to drinking, had the strong odor of alcohol on his breath, had bloodshot eyes, and slurred his speech, the trial court properly ruled that the officer lacked probable cause to arrest the defendant for DUI because any suspicions of impairment were not corroborated by other factors, such as poor driving, stumbling, falling, or an inability to communicate.

Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination. See People v. O’Brien, 227 Ill. App. 3d 302, 307 (1992) (no probable cause to arrest defendant for DUI where defendant was speeding, admitted to drinking, and unsuccessfully performed sobriety test).

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has Got To Be Specific Plus Identity Information Is Suppressible)

Before You Go...

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The Best Reason To Change The "Smell Of Cannabis" Rule

Nov 7, 2018 24:34

Description:

Episode 556 (Duration 24:34). Charles Schierer of East Peoria, Illinois, explains why it's a good time to change the "smell of cannabis" rule.

Attorney Charles Schierer East Peoria Illinois
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In This Episode...

"Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" -- Charles Schierer

Attorney Charles Schierer

Charles Schierer's first love is practicing criminal law in federal court. He started in the Peoria County Public Defender's Office. It didn't take him long before he was practicing before the United States Central District District Court.

Chuck's firm handles civil personal injury claims, auto accidents, federal criminal defense, state criminal defense and appeals. Chuck is currently the CJA Central District Panel Representative. 

Contact Information

Schierer & Ritchie, LLC
1009 Illini Drive
East Peoria, IL 61611

(309) 839-2024

chuck@srtriallawyers.com

"Can't Miss" Moments:

✓ Why you have to divide the world into how things were before the Cannabis Control Act and how things are after the act. Before the act, the law clearly, unmistakably allowed police certain liberties. Anybody who did criminal defense work came across these cases. How do you defend against this kind of stop? Now the rules are up for grab. (Go to 4:30)

✓ Under 10 grams possession of cannabis is not a crime. Should the liberties we give to the police change accordingly? Jump to this section to listen to Chuck's personal opinion on what the best version of the "smell of cannabis" rule should be. The rippling-domino effect gets ignored at your own peril. (Go to 5:40)

✓ The truth about what decriminalization really means. What does it mean for us? What does it mean for the police? Do we really "get it?" How is this the same as the smell of alcohol? How is this different from the smell of alcohol? (Go to 6:18)

✓ Decriminalization means possessing minor amounts of cannabis is not a crime anymore. It means all our problems are gone and we don't have to worry about the government having their nose in our business anymore...WRONG. Decriminalization is not exactly the same as legalization.  (Go to 8:18)

✓ The burning leaves example...the difference between burning yard leaves and burning cannabis leaves...a real life practical example...The absurdity of police action...What police are really looking for in these cases. Nothing wrong with being a little  intellectually honest and consistent. (Go to 9:12)

✓ "Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" (Go to 13:10)

✓ We may have to rethink what we are doing in light of what other states are doing. See Massachusetts for a great example. Believe it or not, New York looks like it got it right. The further west you go, the more people begin to lose their minds. California, Arizona and Colorado got whacky with this, quite the opposite of what you would have expected from those weed loving states.  Here's the best way to interpret what those states have said on this issue. (Go to 14:40)

✓ Does smell equal probable cause? Is it a done deal when the whiff is in or is it just one factor in the probable cause determination? That's what courts have to figure out. What the cases do and don't say matter. For example, there's a difference between raw cannabis and burnt cannabis. (Go to 15:45)

✓ The reason why Chuck says In re O.S. was well reasoned but still wrong...It does a good job of describing a situation that will happen over and over again. The case also did this one other thing very well. (17:50)

✓ This is what will happen if the court tries to distinguish between a strong odor, a moderate odor and a faint odor of cannabis. You'll invite certain conduct by the police. Is that what we want? Lead the police down this path and don't you worry they will go down it. (Go to 19:40)

✓ More absurdity: They arrest you for being addicted to opioids, encourage you to smoke weed via the Alternative To Opioids Act, then at the first scent of cannabis they toss your life and pull you out of your car as they proceed to go through everything in it. (Go to 21:13)

Links & Resources In re O.S., 2018 IL App (1st) 171765 (June) Central District of Illinois | United States District Court CJA Central District Panel Peoria County Public Defender's Office Illinois Cannabis Control Act - Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4) People v. Rice - Third District Appellate Court - Case No. 3-17-0134 Commonwealth v. Cruz, 945 N.E.2d 899, 908-10 (Mass. 2011) (mere odor of marijuana no longer provided reasonable suspicion of criminal activity following decriminalizing of small amounts) People v. Brukner, 25 N.Y.S. 3d 559, 572 (2015) (mere odor of marijuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred)  People v. Strasburg, 56 Cal. Rptr. 3d 306, 311 (Ct. App. 2007) (odor of marijuana in a parked car provided police officer with probable cause to search the vehicle and the occupants therein) State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (rejecting the argument the odor of marijuana no longer provided law enforcement officers with probable cause to believe that criminal activity) People v. Zuniga, 372 P.3d 1052, 2016 CO 52 (Colo., 2016) (concluding that the odor of marijuana remains relevant to probable cause determinations and can support an inference that a crime is ongoing) Robinson v. State, 152 A.3d 661, 681 (Md. 2017) (amendment to Maryland’s marijuana statute decriminalizing, but not legalizing, the possession of less than 10 grams of marijuana did not “alter existing case law concerning the search, seizure, and forfeiture of marijuana) State v. Senna, 2013 VT 67, 194 Vt. 283, 79 A.3d 45 (concluding that the passage of Vermont’s medical marijuana law does not undermine the significance of the smell of marijuana as an indicator of criminal activity) The Illinois Alternative To Opioids Act Illinois Policy.org on the Alternative To Opioids Act See Also

You may also want to check out...

Episode 509 - Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search Episode 340 - Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant Episode 015 - Police Car Search Legal in Illinois if They Smell Marijuana...Police Officer Describes A Faint Odor Of Marijuana Episode 276 - You Just Can't Ignore The Stench Of Weed In An Auto Accident Episode 196 - Dog Sniff Alert To Drugs Will Lead To Car Search Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law Episode 251 – With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law Before You Go...

If you are an Illinios attorney and keeping up with the case law is important to you then read below to see how to get a free copy of my book.

You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. Are you ready to join the other attorneys who have discovered how to make their ears their secret weapon?

While Supplies Last
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Not your typical legal book.
Easily identify winning scenarios. 
Busy lawyer's guide to explosive litigation growth.

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Attorney Anthony Sassan | What You Need To Know About The Practical Differences Between Federal And State Criminal Court

Oct 22, 2018 47:51

Description:

It's more than just the types of crimes that are prosecuted. There are fundamental differences between practicing in federal and state criminal court. Episode 548 (Duration 47:50)

Federal v. State With Anthony Sassan

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In This Episode...

"Federal judges get their authority from the constitution; they're article III judges. And then they have the federal rules of criminal procedure. They stick to those rules." -- Anthony Sassan

Thinking about dipping your toe into federal criminal practice. Here's everything you need to know that's different from state court...

Attorney Anthony Sassan

Attorney Anthony Sassan has an extensive federal and state law practice in Chicago and the surrounding suburban area. 

Anthony and his firm handle the following types of cases:

Estate Planning Probate Litigation Federal Criminal Defense State Criminal Defense Federal Civil Litigation State Civil Litigation  Closely Held Business Representation  Real Estate Closings Family Law Contact Information

Sassan & Sassan
161 North Clark Street Suite 1600
Chicago, IL 60601-3338

(312) 972-9050
info@sassanlaw.com
ajs@sassan.law.com

"Can't Miss" Moments:

✓ How to start a federal criminal law practice even if you have no federal experience what-so-ever. (Go to 2:30)

✓ The Criminal Justice Act (CJA) describes how "panel attorneys" are appointed to represent federal defendant's who can't afford their own attorneys. This is a way to get paid for representing indigent clients in federal court. (Go to 3:42)

✓ One big difference in federal court is that you see big conspiracy cases with multiple defendants...someone has to represent them. (Go to 4:12)

✓ In a nutshell, these two words explain most of the differences between state and federal court. Master this lesson and you'll become a federal court wizard in no time. (Go to 6:23)

✓ Illinois is just coming around to reforming it's bail system. Here's how the feds have handled pretrial detention. (They don't call it bail in federal court. It's never been about the money for them). The words may be different but some things work the same way as in state court. (Go to 7:41)

✓ There's one big thing that is 100 times easier in federal. For the most part, expect everything else to take longer, require more research, more detailed briefs, and to follow strict protocols. (Go to 11:48)

✓ You don't have to worry about a "Santiago" proffer in state court. Expect to deal with them in the federal system as part of your discovery. Plus, jump to minute (18:30) to hear more about federal discovery practice. You got to know about the "2 week" rule.

✓ There's no single bigger contrast than the difference between a trial date in federal court versus a trial date in state court. Why you'll never see more than 3 cases set for trial on the same date in federal court. What you should never do if you think you need a trial continuance. And what happens when you give federal prosecutors the right to a jury trial in criminal cases. (Go to 21:58)

✓ The one question that's the most difficult to answer when you represent individuals in federal criminal court...The 3 basic stages of every federal sentencing hearing...Why it all feels like cold pleas in federal court... (Go to 29:20)

✓ What you can expect when federal law enforcement witnesses take the stand, and the real reason why federal investigators can be perceived as more professional than local law enforcement. (Go to 43:05)

Links & Resources U.S. District Court Northern District of Illinois - Attorney Information  U.S. District Court Northern District of Illinois - Admission to the General Bar Attorney Admission Frequently Asked Questions  Frequently Asked Questions about Trial Bar Membership Instruction For Admission To The General Bar Petition for Admission to the General Bar Criminal Justice Act Information Becoming A CJA Panel Member U.S. District Court of Northern District of Illinois CJA Rules CJA Training Videos Illinois Federal Defender Program Chicago Federal Defenders Training Division Federal Defenders CJA Practitioner Resources See Also

You may also want to check out...

Episode 359 What You Need To Know About The Illinois Bail Reform Law Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed Before You Go...

If you are an Illinios attorney and keeping up with the case law is important to you then read below to see how to get a free copy of my book.

You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. Are you ready to join the other attorneys who have discovered how to make their ears their secret weapon?

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Not your typical legal book.
Easily identify winning scenarios. 
Busy lawyer's guide to explosive litigation growth.

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Top 10 Most Recent Illinois Confession Cases (September 2018)

Sep 11, 2018 31:11

Description:

Here are the top 10 most recent Illinois criminal law confession cases in September of 2018. Episode 534 (Duration 31:11).

Illinois top 10 confession cases

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Top 10 Recent Confession Cases From The Illinois Court System (September 2018)

Here's a quick snapshot of the most important cases cases:

A Block - Coerced Confessions With "Normal" Defendants

1.  People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22). Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright. Kid kept asking for his mother. Court clearly thinks he didn’t do it.

2. People v. Phillips, 2018 IL App (3d) 130270 (February). Episode 479 (Duration 13:35). 18-year-old’s confession ruled involuntary, in part, because defendant is told baby killers get killed in prison.

B Block - Clear Wrongdoing By Police But Confession Saved

3. People v. McArthur, 2018 IL App (1st) 150626 (June). Episode 515 (Duration 8:15). 17 year old held for 73 hours before a probable cause hearing nonetheless gave a voluntary confession. It's a sex case. Time limit thing is not an absolute rule.

4. People v. Soto, 2017 IL App (1st) 140893 (January). Episode 291 (Duration 11:45). Third confession 24 hours after first Mirandaless confession was cured of the taint of the constitutional violation. This was the homeless guy who was “staying” at the station when they finally “realized” he was the main suspect.

5. People v. Mandoline, 2017 IL App (2d) 150511 (February). Episode 316 (Duration 12:31). The police misconduct here did not overbear defendant’s will so as to deprive him of the opportunity to knowingly and intelligently relinquish his rights and give statements to the police. Arson case. Wind blew the smoke into the house killing the victim sleeping inside.

C Block - Police Don't Overreact But Defendant Not "Normal"

6. In re S.W.N., 2016 IL App (3d) 160080 (July). Episode 210 (Duration 11:57). Minor had an IQ of 70, otherwise voluntary confession suppressed because minor likely didn’t understand the Miranda warnings. Forceful sexual assault case.

7. People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42). This 17 year old’s confession was voluntary even though he had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother. Really bad violent crime. He executed a witness by putting a pillow over his face and shooting. A second victim survived.

D Block  - Overwhelming Police Presence

8. People v. Hernandez, 2017 IL App (1st) 150575 (March). Episode 332 (Duration 11:51). Confession is out; giving the defendant a fake gun residue test did not sufficiently attenuate the bad arrest. Defendant was arrested by 20 officers immediately after his ex girlfriend was found dead in her car with a shotgun wound to her head.

9. People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 273 (Duration 9:35) Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 274 (Duration 12:33) Part 2. I also break down a bunch of older cases.

E Block - Wild Card 

10. People v. Hardimon, 2017 IL App (3d) 120772 (May). Episode 378 (Duration 9:56). Jury should not have seen that portion of the recorded interrogation where the police go at the defendant more aggressively. He didn’t confess per se but the jury got to see what the police really thought happened.

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Busy lawyer's guide to explosive litigation growth.

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Top 13 Illinois Supreme Court Criminal Law Cases In 2017

Aug 14, 2018 37:42

Description:

These are the top 13 most important criminal law cases released by Illinois Supreme Court in 2017. Episode 522 (Duration 37:42)

2017 Top 13 Illinois Criminal Law Cases Released By The Illinois Supreme Court

Here's a quick snapshot of the top cases:

1. People v. Holmes

Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause.

2. People v. Brooks

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn.

3. People v. Way 

This was the appellate court decision that reversed the aggravated DUI conviction.

4. People v. Hardman

Is is sufficient for a couple officers to testify they are familiar with the neighborhood and that the building is a school?

5. People v. Fort

Illinois Supreme Court says State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count.

6. People v. Ayres

What does defendant have to say to trigger a Krankel inquiry?

7. People v. Shinaul

State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction.

8. People v. Howard

Illinois Supreme Court upholds the constitutionality of anti loitering statute for sex offenders.

9. People v. Pearse

Illinois Supreme Court acknowledges that SORA is a big bloody mess and calls for legislative clarification and police practice changes.

10. People v. Sebby

Supreme Court explains how plain error analysis works.

11. People v. Brown

Defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case.

12. People v. Relerford

Just a small part of the Illinois stalking statute was declared unconstitutional.

13. People v. Ringland

Prosecutors cannot designated officials with general policing power.

You Have An Expectation Of Privacy In Your Cell Site Location Information

Jul 5, 2018 17:52

Description:

Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52)

Police need a warrant to capture your CSLI.

SCOTUS on cell site location information

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  The Charges

Defendant was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence.

He was convicted and sentenced to more than 100 years in prison.

Issue

This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.

Defendant argued the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause.

Cell Site Location Information
(The Technology)

Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site.

Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI).

The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.

Wireless carriers collect and store CSLI for their own business purposes.

The Investigation

The FBI was investigating a series of robberies of Radio Shack and TMobile stores in Detroit.

They obtained the suspects CSLI under the Stored Communications Act. That statute, as amended in 1994, permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d).

That showing falls well short of the probable cause required for a warrant.

Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

His Location Convicted Him

The prosecution produced maps that placed the defendant’s phone near four of the charged robberies. In the Government’s view, the location records clinched the case: They confirmed that he was “right where the . . . robbery was at the exact time of the robbery.” 

The Fourth Amendment

 The Fourth Amendment protects

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The “basic purpose of this Amendment,” our cases have recognized, “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” United States v. Jones, 565 U. S. 400, 405, 406, n. 3 (2012).

More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Soldal v. Cook County, 506 U. S. 56, 64 (1992). In Katz v. United States, 389 U. S. 347, 351 (1967), we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well.

Expectation of Privacy

When an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.

Point Is To Restrict Government

Our cases have recognized some basic guideposts.

First, that the Amendment seeks to secure “the privacies of life” against “arbitrary power.” Boyd v. United States, 116 U. S. 616, 630 (1886).

Second, and relatedly, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance.” United States v. Di Re, 332 U. S. 581, 595 (1948).

Two Lines Of Cases

This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake.

Expectation of Privacy In
Physical Location & Movement

The first set of cases addresses a person’s expectation of privacy in his physical location and movements.

In United States v. Jones, FBI agents installed a GPS tracking device on Jones’s vehicle and remotely monitored the vehicle’s movements for 28 days. The Court decided the case based on the Government’s physical trespass of the vehicle. 565 U. S., at 404–405.

Since GPS monitoring of a vehicle tracks “every movement” a person makes in that vehicle, the concurring Justices concluded that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy”—regardless whether those movements were disclosed to the public at large.

Third Party Doctrine
(Shared Information Is Not Private)

In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others.

We have previously held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U. S., at 743–744. This third-party doctrine largely traces its roots to Miller.

Bank Records

While investigating Miller for tax evasion, the Government subpoenaed his banks, seeking several months of canceled checks, deposit slips, and monthly statements. See United States v. Miller, 425 U. S. 435, 443 (1976).

Pen Register

Three years later, Smith applied the same principles in the context of information conveyed to a telephone company. The Court ruled that the Government’s use of a pen register—a device that recorded the outgoing phone numbers dialed on a landline telephone—was not a search. See Smith v. Maryland, 442 U. S. 735.

The Court explained, such an expectation “is not one that society is prepared to recognize as reasonable.”

Intersection Of The Cases

The question we confront today is how to apply the Fourth Amendment to a new phenomenon:

the ability to chronicle a person’s past movements through the record of his cell phone signals.

Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.

2. At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records.

After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

Analysis-Even Greater
Privacy Concerns

The location information obtained from Carpenter’s wireless carriers was the product of a search.

A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U. S., at 351–352.

Although such records are generated for commercial purposes, that distinction does not negate Carpenter’s anticipation of privacy in his physical location. Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” These location records “hold for many Americans the ‘privacies of life.’” Riley, 573 U. S., at ___ (slip op., at 28) (quoting Boyd, 116 U. S., at 630).

In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones.

Feature of Human Anatomy

Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.

A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.

Like An Ankle Monitor
That Travels Backwards In Time

Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years.

Everyone Is Tracked

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone.

Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment.

Only the few without cell phones could escape this tireless and absolute surveillance.

Seismic Shift In Technology

Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.

The Government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only this defendant's location but also everyone else’s, not for a short period but for years and years.

Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.

Holding

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.

Yet this case is not about “using a phone” or a person’s movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller.

We therefore decline to extend Smith and Miller to the collection of CSLI. Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection.

The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.

Get A Warrant

Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.

The standard in the Stored Communications Act is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.

Subpoena Not Going To Do It

If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement.

Under JUSTICE ALITO’s view, private letters, digital contents of a cell phone—any personal information reduced to document form, in fact—may be collected by subpoena for no reason other than “official curiosity.” This is certainly not to say that all orders compelling the production of documents will require a showing of probable cause.

The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations.

Exigent Circumstances Still Apply

We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.

Further, even though the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances. 

One well recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment."

Fleeing Suspect, Imminent Harm, Destruction of Evidence

Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.

As a result, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to

bomb threats active shootings and child abductions.

Our decision today does not call into doubt warrantless access to CSLI in such circumstances.

This Is A Narrow Decision

Further, the decision today is a narrow one.

-We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).

-We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras.

-Nor do we address other business records that might incidentally reveal location information.

-Further, our opinion does not consider other collection techniques involving foreign affairs or national security.

Conclusion

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

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114 Failure To Register As A Sex Offender Reporting is Different Than Registering

Jul 2, 2018 04:25

Description:

People v. Brock, 2015 IL App (1st) 133404 (November 2015). Episode 114 (Duration: 4:24)

Reporting is different than registering, and Defendant is required to have documentation with his new address in order to register that address.

The sex offender registration act (730 ILCS 150/1 et seq.) imposes two separate requirements. The first imposes a general duty to register on all sex offenders. 730 ILCS 150/3. The second, is the duty to report. 730 ILCS 150/6. The statute also imposes a separate and additional duty on those sex offenders specifically adjudicated "dangerous" or "violent," and it is clear from the language of the statute that the legislature intended to distinguish a duty to report that does not simply duplicate the registration requirement.

Thus, the language of the statute clearly distinguishes "report" and "register" and when it requires one, or both, it does so by expressly stating such requirement. Logically, one can "report" without registering, but may not "register" without reporting, because registration requires the creation of a signed writing.

This defendant did report on time but was turned away because he could not pay the registration fee. However, defendant did violate the failure to register a new address provision because he did not have an ID or some type of documentation with the new address as is required. See 730 ILCS 150/3(c)(5).

Additionally, the defendant had only two prior felony convictions—one for aggravated criminal sexual assault and a second for indecent liberties with a child. The indictment listed defendant's prior conviction for aggravated criminal sexual assault as the basis for establishing his duty to comply with the Act. Establishing a defendant's duty to register under the Act is an element of the offense.

This conviction was also necessarily used as one of his two prior felony convictions to mandate Class X sentencing. The sentence was improper. See People v. Hall, 2014 IL App (1st) 122868.

 

A Racist, A Black Guy, And A Hammer...A Test For Criminal Justice

Jun 27, 2018 15:06

Description:

People v. Wilkinson, 2018 IL App (3d) 160173 (June). Episode 504 (Duration 15:06)

Defendant beats back a racist aggressor; now he's doing 3 years.

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Gist

A big white dude walks up to defendant’s front door with another guy. When Defendant gets to the door the white dude punches defendant who is African American. A struggle ensues. Defendant grabs a hammer and hits defendant in the head. Either he doesn’t stop and repeatedly hits him or the struggle ensues.

Issue

On appeal, defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that defendant did not reasonably believe that the force he used was necessary to prevent great bodily harm.

The parties on appeal limit their arguments to the reasonableness of defendant’s belief that striking the victim with a hammer was necessary to prevent great bodily harm to himself.

Facts

Big white dude was jacked up.

The victim testified that he suffered fractures to his eye socket, sinus cavity, and “nose socket” as a result of the altercation. Looks like it came from one blow with the hammer.

He required 12 staples and a number of stitches. A tendon was also severed. He continued to suffer from eye spasms and headaches.

The Verdict

The State concedes “that the record in this case supports defendant’s and trial court’s beliefs that Cook was the initial aggressor. More pointedly, the State concedes that Cook punched defendant in the face. The State, however, argues that defendant used “excessive force,” or “an amount of force far greater than needed to neutralize the threat posed by Cook.”

Here, the jury was free to conclude that defendant struck the victim repeatedly in the head with a hammer while he was on top of him and the victim was trying to get away.

It follows that the jury could rationally conclude that any belief defendant held at that point that those hammer strikes were necessary to protect himself was unreasonable.

Racist Victim

The trial court noted that “the elephant in the room” was that “this case [was] about being black.” The court found it clear that the victim did not like defendant because of his race, based on his comments that defendant was not welcome in the neighborhood. The court noted that defendant had been made well aware of that racial animosity before the physical altercation.

The victim’s untruthfulness about his initial intentions did not fatally undermine his credibility as to his later actions. Indeed, it is plausible that a hammer strike to his face, leaving a large gash between his eyes, was enough to convince the initially aggressive victim that it was time to leave.

In sum, testimony from the victim in this case tended to show that defendant continued to strike him with a hammer after any threat had subsided. The jury could reasonably have concluded that this testimony was credible and, in turn, that defendant did not reasonably believe those continued hammer strikes were necessary to prevent great bodily harm to himself.

Self Defense?

Defendant claimed self defense.

The court concluded that victim was the aggressor.

The court noted that while defendant had been initially justified in using force, the State had proven beyond a reasonable doubt that he used “excessive force in the lawful act of self-defense.” The court commented that defendant would not have been guilty if he had only struck the aggressor with the hammer “once or twice.” The court made clear that it was sentencing defendant not for initially striking the victim with the hammer, but “for not stopping.”

Police Investigation

The court also condemned the actions of the investigating officers in the case, opining:

“[T]he police already made up their mind what the charge was before they ever spoke to you. They didn’t even come and ask you what happened. They didn’t come and ask your girlfriend what happened, even though she was the one that called the police. They just went directly to the victim and got his side of the story and the case was opened, and closed, and shut.”

Sentence

The court sentenced defendant to a term of three years’ imprisonment.

Statue on Self Defense

 Section 7-1(a) of the Criminal Code of 2012 holds as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

720 ILCS 5/7-1(a).

The section further provides that a person who is an “aggressor” may not invoke self-defense. Id. § 7-1(b).

Self Defense Elements

A claim that self-defense justified a use of force that was likely to cause great bodily harm contemplates six distinct elements:

(1) unlawful force was threatened against a person,
(2) the person threatened was not the aggressor,
(3) the danger of great bodily harm was imminent,
(4) the use of force was necessary,
(5) the person threatened actually and subjectively believed a danger existed that required the use of the force applied, and
(6) the beliefs of the person threatened were objectively reasonable.

Once a defendant raises the affirmative defense of self-defense, the burden shifts to the State to prove beyond a reasonable doubt that defendant did not act in self-defense.

The State satisfies this burden if it negates any of the six elements beyond a reasonable doubt.

Holding

We find the State produced evidence sufficient to prove beyond a reasonable doubt that defendant was not acting in self-defense. The judgment of the circuit court of Whiteside County is affirmed.

But See The Dissent

The dissent says he was only hit once with the hammer.

Defendant's Injuries

The photographs showed a swollen nose and a knot on defendant’s head, apparently confirming the punch to his face, and “welt-like marks on his right arm, redness and a small wound on his left arm, and scrapes on his elbow, knee, and knuckles.”

The photographic evidence in the case, including the welts and redness on the Defendant’s arms, thus casts doubt upon the victim’s testimony in two ways:

(1) How did the victim have only one significant injury to his face if he was struck in the head multiple times with a hammer while defendant was on top of him? and
(2) How did the defendant acquire such a variety of injuries if the victim was merely trying to flee?

Indeed, nothing in the victim’s version explains defendant’s injuries.

In affirming, the majority not only does not address these questions; it makes no reference to the photographs at all in its analysis.

Victim's Testimony

The victim’s testimony, the most significant basis for Wilkinson’s conviction, is precisely the type of “unreasonable, improbable, or unsatisfactory” evidence that creates a reasonable doubt as to Wilkinson’s guilt.

Just One Solid Hammer Blow

Further, the majority’s holding is that the defendant was no longer acting in self-defense when, at least according to the victim, he continued to beat the victim with the hammer outside.

Yet the evidence unequivocally shows that the major wound to the victim’s face—the wound that clearly was the source of the frontal sinus fracture referenced in the charging instrument—was the result of the first, justified hammer strike.

No Serious Injuries After First Blow

To sustain a conviction on the theory that it was defendant’s continued hammer strikes that negated the reasonableness of his belief in the necessity of his actions, the State would need to prove that defendant caused great bodily harm after the point at which he was no longer reasonably defending himself.

Even accepting as true victim’s later testimony that he was merely trying to get away when defendant repeatedly struck him with the hammer outside, the photographs show that those alleged additional hammer strikes caused—at most—some cuts, scrapes, and slight bruising.

3 SCOTUS Criminal Law Cases (Q2 2018)

Jun 19, 2018 40:37

Description:

Episode 501 (Duration 40:36) 3 criminal law cases from the Supreme Court of the United States were released in the second quarter of 2018. Here they are...

3 SCOTUS criminal law cases second quarter 2018

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In This Episode...

We discuss the following cases:

Byrd v. United States (May 2018) McCoy v. Louisiana (May 2018) Collins v. Virginia (May 2018) Byrd v. United States

Driver of a rental car not on the renting papers nonetheless has an expectation of privacy.

Gist

Defendant was driving a rental car in Pennsylvania.

When the police discovered he was not on the rental agreement they told him they didn’t need his permission to search the car. They found 49 bricks of heroin and charged him in federal court.

Issue

SCOTUS granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental agreement.

Facts

Defendant was given control of the car right at the rental lot after another person rented the car. Defendant was not listed as an additional driver and was prohibited from driving the car by contract. Defendant was stopped because he was driving with his hands at the 10 and 2 position, he was seated way back and it was a rental car. Further, he was very nervous and shaking with the police and admitted he had a blunt in the car.

Police sought his consent to search the car, but then just searched it.

When they found body armor defendant started to run away from the scene. He was caught and admitted there was heroin in the car.

The search resumed and police discovered the 49 bricks.

Lower Court

The lower courts denied his motion because they said he had no standing to raise the issue. 

Property Rights

Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. Still, “property concepts” are instructive in determining the presence or absence of the privacy interests protected by that Amendment.

Indeed, more recent Fourth Amendment cases have clarified that the test most often associated with legitimate expectations of privacy, supplements, rather than displaces, “the traditional property-based understanding of the Fourth Amendment.” See Florida v. Jardines, 569 U. S. 1, 11 (2013).

Reference to property concepts aids the Court in assessing the precise question here: Does a driver of a rental car have a reasonable expectation of privacy in the car when he or she is not listed as an authorized driver on the rental agreement?

One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others.

Privacy of Others

On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it creates too broad a gauge for measurement of Fourth Amendment rights.

Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable expectation of privacy, it has explained that legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

Right To Exclude Others

One of the main rights attaching to property is the right to exclude others, and, in the main, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.

This general property-based concept guides resolution of this case.

Analysis

Here, the Government contends that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. This per se rule rests on too restrictive a view of the Fourth Amendment’s protections.

On the other hand, merely being the sole occupant of a car doesn’t always create a privacy interest. A thief wouldn’t necessarily have a reasonable expectation of privacy in a car he was caught driving away in.

The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it. It does not seem to matter whether a friend owns or leases an apartment he is permitted to use.

Both an owner and invited guest would have the expectation of privacy that comes with the right to exclude.

Lawful Possession

The central inquiry at this point turns on the concept of lawful possession, and this is where an important qualification of Byrd’s proposed rule comes into play. No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car.

Though new, the fact pattern here continues a well traveled path in this Court’s Fourth Amendment jurisprudence.

Holding

Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.

The Court leaves for remand two of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

The judgment of the Court of Appeals is vacated, and the case is remand.

McCoy v. Louisiana

Defendant has the right to maintain his innocence even if his attorney thinks otherwise. Defendant got the death penalty for a triple murder.

Facts

Defendant’s wife’s mother, step father and son were all shot and killed in their home. Defendant says he was out of state in Idaho at the time of the killing and that the police shot and killed the family. The defense attorney believed the evidence was overwhelming against defendant. Defendant didn’t care and wanted to proceed with his alibi defense.

Attorney Concedes Guilt

At the beginning of his opening statement at the guilt phase of the trial, the lawyer told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.” McCoy protested; out of earshot of the jury, McCoy told the court that his lawyer was “selling [him] out”.

Continuing his opening statement, counsel told the jury the evidence is “unambiguous,” “my client committed three murders.”

Defendant Testified

McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom.

In his closing argument, the attorney reiterated that McCoy was the killer. At the penalty phase, he again conceded “Robert McCoy committed these crimes,” but urged mercy in view of McCoy’s “serious mental and emotional issues.”

Issue

We granted certiorari in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.

Right To Counsel

The Sixth Amendment guarantees to each criminal defendant “the Assistance of Counsel for his defence.”

As this court has explained, the right to defend is personal, and a defendant’s choice in exercising that right must be honored out of that respect for the individual which is the lifeblood of the law.

Similarly, the right to appear pro se exists to affirm the dignity and autonomy of the accused. The choice is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in granting to the accused personally the right to make his defense, speaks of the assistance of counsel, and an assistant, however expert, is still an assistant.

The Sixth Amendment contemplates a norm in which the accused, and not a lawyer, is master of his own defense. Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U. S. 242, 248 (2008).

Decisions For Defendant Alone

Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. See Jones v. Barnes, 463 U. S. 745, 751 (1983).

Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category.

Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial.

These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are. Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as counsel did in this case.

Defendant Has Different Motivations

But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration.

When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.

What About Rules of Precessional Responsibility?

ABA Model Rule of Professional Conduct 1.2(a) (2016) says a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”. Preserving for the defendant the ability to decide whether to maintain his innocence should not displace counsel’s, or the court’s, respective trial management roles.

Counsel, in any case, must still develop a trial strategy and discuss it with her client.

Simply stated, the rules of professional responsibility would have allowed counsel to put on defendant's defense.

The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. This attorney harbored no doubt that McCoy believed what he was sayin, the lawyer simply disbelieved McCoy’s account in view of the prosecution’s evidence.

Counsel’s express motivation for conceding guilt was not to avoid suborning perjury, but to try to build credibility with the jury, and thus obtain a sentence lesser than death.

Louisiana’s ethical rules might have stopped counsel from presenting McCoy’s alibi evidence if he knew perjury was involved. But Louisiana has identified no ethical rule requiring him to admit McCoy’s guilt over McCoy’s objection.

Defendant's Have A Right To Steer The Ship Into The Reef

If, after consultations with his attorney concerning the management of the defense, McCoy disagreed with his proposal to concede McCoy committed three murders, it was not open to the attorney to override McCoy’s objection.

Counsel could not interfere with McCoy’s telling the jury “I was not the murderer,” although counsel could, if consistent with providing effective assistance, focus his own collaboration on urging that McCoy’s mental state weighed against conviction.

Here, McCoy opposed his attorney's assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court.

If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.

These were not strategic disputes about whether to concede an element of a charged offense; they were intractable disagreements about the fundamental objective of the defendant’s representation. 

It's Structural Error

Violation of a defendant’s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called “structural”; when present, such an error is not subject to harmless-error review.

Structural error “affect[s] the framework within which the trial proceeds,” as distinguished from a lapse or flaw that is “simply an error in the trial process itself.” An error may be ranked structural, we have explained, “if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,” such as “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.”

An error might also count as structural when its effects are too hard to measure, as is true of the right to counsel of choice, or where the error will inevitably signal fundamental unfairness, as we have said of a judge’s failure to tell the jury that it may not convict unless it finds the defendant’s guilt beyond a reasonable doubt.

Holding

In this stark scenario, we agree with the majority of state courts of last resort that counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.

McCoy must therefore be accorded a new trial without any need first to show prejudice.

McCoy insistently maintained: “I did not murder my family.”

Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilt should have been off the table. The trial court’s allowance of Counsel’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment.

Because the error was structural, a new trial is the required corrective. For the reasons stated, the judgment of the Louisiana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

Episode 033 - People v. Holt,  2014 IL 116989 (November) (counsel admits his client is unfit against the client's admit protest to the contrary)

Collins v. Virginia

Police need a warrant to search a vehicle on private property.

Issue

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.

Facts

Police were aware of a man speeding on an orange and black motorcycle but were unable to catch him. Officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.

It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.

From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph.

No Warrant

Officer Rhodes, who did not have a warrant, exited his car and walked toward the house.

He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

In order “to investigate further,” Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen.

After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.

Defendant Gets Home

Shortly thereafter, Collins returned home.

Officer Rhodes walked up to the front door of the house and knocked. Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title.

Officer Rhodes then arrested Collins.

Charges

Collins was indicted by a Virginia grand jury for receiving stolen property.

Automobile Exception v. Warrant Requirement

This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.

Automobile Exception

The Court has held that the search of an automobile can be reasonable without a warrant.

The Court first articulated the so-called automobile exception in Carroll v. United States, 267 U. S. 132 (1925). The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney, 471 U. S. 386, 390 (1985) (citing, e.g., Cooper v. California, 386 U. S. 58, 59 (1967); Chambers v. Maroney, 399 U. S. 42, 51–52 (1970)).

Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U. S., at 392. As the Court explained in South Dakota v. Opperman, 428 U. S. 364 (1976):

“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.”

Id., at 368.

Homes Are Different

These rationales don’t exist for houses.

Like the automobile exception, the Fourth Amendment’s protection of curtilage has long been black letter law. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U. S. 1, 6 (2013). “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Ibid. (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)).

Curtilage Part Of The Home

To give full practical effect to that right, the Court considers curtilage—“the area ‘immediately surrounding and associated with the home’”—to be “‘part of the home itself for Fourth Amendment purposes.’” Jardines, 569 U. S., at 6 (quoting Oliver v. United States, 466 U. S. 170, 180 (1984)). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 212–213 (1986).

When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Such conduct thus is presumptively unreasonable absent a warrant.

Just like the front porch, side garden, or area outside the front window the driveway enclosure where Officer Rhodes searched the motorcycle constitutes an area adjacent to the home and to which the activity of home life extends, and so is properly considered curtilage.

State Says Expand Automobile Exception

Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.

Expanding the scope of the automobile exception in this way would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the automobile exception from the justifications underlying it. Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 10) (quoting Arizona v. Gant, 556 U. S. 332, 343 (2009)).

Surely, He Couldn't Go In The House

Had Officer Rhodes seen illegal drugs through the window of Collins’ house, for example, assuming no other warrant exception applied, he could not have entered the house to seize them without first obtaining a warrant. Similarly, it is a “settled rule that warrantless arrests in public places are valid,” but, absent another exception such as exigent circumstances, officers may not enter a home to make an arrest without a warrant, even when they have probable cause. Payton v. New York, 445 U. S. 573, 587–590 (1980).

That is because being arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.

Likewise, searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage.

Must Have A Lawful Right To Be There

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception.

The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.

Garages Would Have More Protection

Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage. See United States v. Ross, 456 U. S. 798, 822 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion”).

Holding

To allow an officer to rely on the automobile exception to gain entry into a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.

For the foregoing reasons, we conclude that the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.

The judgment of the Supreme Court of Virginia is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 - This Hot Pursuit Of A Disorderly Conduct Suspect Didn’t Justify The Warrantless Entry Into The Trailer

Episode 464 - Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments?

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5 Illinois Search & Seizure "Pat Down" Cases | How Not To Act In Front Of The Police

Jun 6, 2018 13:27

Description:

Episode 496 (Duration 13:26) Here's a quick summary of 5 recent "pat down" cases. 3 Go for the State, and 2 come out in favor of the defense.

5 Illinois Search & Seizure Cases - Pat Down

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In This Episode...

We discuss the following cases:

People v. Richardson, 2017 IL App (1st) 130203-B (May) People v. Evans, 2017 IL App (4th) 140672 (March) In re Jarrell C., 2017 IL App (1st) 170932 (December) People v. Gomez, 2018 IL App (1st) 150605 (April) In re D.L., 2017 IL App (1st) 171764 (December)

...and the bonus:

People v. Timmsen, 2016 IL 118181 (March) People v. Richardson

Fidgeting With Your Waistband At The Wrong Time Gonna Get You Patted Down.

This pat down was justified after Defendant was fidgeting with his waistband and reaching for something after he was told to show them his hands.

Facts

Officers stop a car matching the general description of a stolen car.

Officer Akinbusuyi approached the vehicle from the passenger's side while Officer Johnson approached the driver's side.

Officer Johnson requested that the driver exit the vehicle after the driver was unable to produce a driver's license or insurance information. As the driver exited the vehicle, Officer Akinbusuyi observed the defendant mumbling and reaching "into the center console with his right hand but with his left hand it was stuffing something in his waistband."

Kind of Fishy

Officer Akinbusuyi testified that he found the defendant's actions unusual, because "he had no reason to be doing that after I verbally told him let me see your hands."

Officer Akinbusuyi testified that his "best judgment was that he was hiding something in his waistband."

Based on his experience, he believed that "[i]t was mostly likely a weapon, drugs or something he didn't want me to find."

Defendant Ordered Out

Officer Akinbusuyi asked the defendant to exit the vehicle, and the defendant complied.

Officer Akinbusuyi handcuffed the defendant, "patted down the area" and discovered a handgun in the defendant's waistband.

The officers subsequently searched the vehicle and found the victim's culinary tools confirming it was the stolen car.

Issue

Defendant contends that his motion to suppress evidence and quash arrest should have been granted because the arresting officer's pat-down search was unconstitutional.

He argues that the pat-down search was not justified pursuant to Terry v. Ohio, 392 U.S. 1 (1968), because Officer Akinbusuyi lacked a reasonable belief that the defendant was armed and dangerous.

Law

Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of individuals to be free from unreasonable searches and seizures. See U.S. Const., amend. IV; Ill. Const. 1970, art I., section 6. Courts have divided police-citizen encounters into three tiers:

(1) arrests which must be supported by probable cause;
(2) brief investigative detentions, or 'Terry stops,' which must be supported by a reasonable, articulable suspicion of criminal activity; and
(3) encounters that involve no coercion or detention and thus do not implicate fourth amendment interests.

Terry Stop Pat Down

In Terry, the United States Supreme Court held "that a brief investigatory stop, even in the absence of probable cause, is reasonable and lawful under the fourth amendment when a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous."

Terry further specifies when a pat-down search for weapons during an investigative stop is permissible if:

"...nothing in the initial stages of the encounter serves to dispel [the officer’s] reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."

Terry, 392 U.S. at 27.

Reasonableness

"[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given *** to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."

Defendant argues that the circumstances described in that testimony did not justify a reasonable belief that the defendant was armed and dangerous. He asserts that, in reviewing the legality of the pat-down search, the court may not consider the reason why the police stopped the vehicle.

He claims: "Although the officer[s] may have suspected that the vehicle they pulled over may have been" the vehicle reported stolen 90 minutes earlier, "they had absolutely no proof of it at the time they pulled it over."

He further argues that because he was "merely the passenger" and did not control the vehicle, "the status of the car plays no part in the search of [the defendant] by Officer Akinbusuyi."

The defendant suggests that, to support a pat-down search, the officer needed to testify to a more definite belief that the defendant was armed.

Holding

Regardless of whether the officers had yet found proof that the vehicle was stolen, in considering the "totality of circumstances", it was reasonable for Officer Akinbusuyi to take into account that the vehicle matched the description of a car stolen approximately 90 minutes earlier. See People v. Simpson, 2015 IL App (1st) 130303, ¶ 25 (finding that the Terry stop of a vehicle shortly after a reported home invasion was supported by the fact that the vehicle fit the victim's description of the suspects' car).

This fact could contribute to the officer's reasonable suspicion that the occupants were involved in criminal activity and were potentially armed and dangerous.

More importantly, Officer Akinbusuyi testified that, after the driver was asked to exit the vehicle and the defendant

was asked to show his hands, the defendant reached toward the center console with one hand and used his other hand to put something into his waistband.

Officer Akinbusuyi testified that based on his experience, he believed the defendant was attempting to hide something, "most likely a weapon, drugs or something he didn't want me to find."

The officer's belief that the defendant was "mostly likely" hiding a weapon indicated a sufficient suspicion to warrant the pat-down search.

Certainty Not Required

We reiterate that an arresting officer need not be "certain" that the defendant is armed to have a reasonable suspicion, and that the officer may rely on "reasonable inferences in light of his experience."

The defendants' furtive movements —especially after being asked to keep his hands visible—could support the reasonable suspicion that the defendant was armed.

We conclude that the pat-down search was justified under the Terry standard, where

(1) the police officers encountered two individuals at night in a vehicle that matched the description of a recently stolen car and
(2) the defendant's movements in the car supported a reasonable suspicion that he was armed or had access to a weapon in the vehicle.

People v. Evans

Putting Your Hands In Your Pockets May Get You Patted-Down.

Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.

Facts

Officer is responding to a call of a possible burglary.

He sees defendant walking.

He approached defendant for the purpose of determining whether he was involved in the burglary or saw any possible suspects or other suspicious activity.

Safety Concern

He asked where defendant was coming from, to which defendant responded he just left his friend’s house down the block. During the conversation, defendant placed his hands in his pockets, and the officer asked him to remove them several times. When asked, defendant would remove his hands and then place them back into his pockets.

Officer testified he was concerned for his safety because he was alone with defendant and defendant was much larger than he was.

Officer testified he did not know whether defendant was armed, but his concern grew after defendant refused to keep his hands visible during the conversation.

Officer testified he knew the area was a high-narcotics-crime area, and in his experience, those involved with narcotics were often armed with a firearm.

Officer specifically testified the reason he frisked defendant was to determine whether defendant had a weapon in his pocket.

Issue

On appeal, defendant argues the trial court erred by denying his “motion to quash arrest and suppress evidence.”

Defendant asserts his constitutional rights were violated because he was unlawfully searched and, therefore, the items seized during the search should have been suppressed.

The central point of inquiry is at what point was defendant seized.

Mendenhall Factors

The court adhered to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Here, defendant was walking down the street when his encounter with the police began; thus, Mendenhall applies, and the standard under Bostick (where accused stops himself) is inapplicable.

Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554.

Officer's Questions

This defendant’s path of travel was not blocked or interfered with in any way.

The record suggests the officer saw defendant walking in the vicinity of a possible crime and the officer peaceably approached defendant to speak to him. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.

No Seizure

The initial encounter here was a consensual encounter.

None of the Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.

Indeed, “a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen.

First Request To Hands From Pockets

Defendant next argues he was seized at the moment the officer first requested­ he remove his hands from his pockets.

The two got into a pattern where the officer would ask him to take his hands out of his pockets he would briefly then put them back in his pockets.

Here, defendant continued to consent to the conversation with the officer even after the officer asked defendant to remove his hands from his pockets several times and never indicated an intent to terminate the conversation prior to being frisked.

The fact defendant continued to place his hands back into his pockets shows defendant did not fully submit to the officer’s request.

Defendant did not appear to believe compliance was compulsory because he did not comply with the officer’s obvious wish.

Repeated Requests

Defendant opines the repeated requests he remove his hands from his pockets may have signaled he was suspected of wrongdoing, thus impacting his willingness to continue the encounter.

Defendant’s willingness to continue the conversation is evidenced by the fact he continued speaking to the officer even after the officer asked him several times to remove his hands from his pockets.

Further, the nature of the conversation indicated defendant was not a suspect or even a witness to the possible crime the officer was investigating.

The thrust of defendant’s claim is that the officer’s request for defendant to remove his hands from his pockets was a show of authority.

Even if the request was a show of authority, defendant resisted the authority by continuing to place his hands back into his pockets.

Right To Terminate

Further, the central question remains whether a reasonable person would have felt free to terminate the encounter.

The request for defendant to keep his hands visible did not prevent him from exercising his right to terminate the encounter, and a reasonable person in his place should not have believed that right had been extinguished by the request.

The touchstone of the fourth amendment is reasonableness, and the request to keep one’s hands visible is not an unreasonable restraint of liberty. It merely serves as a protection to both officer and citizen.

Terry

The court rejected defendant’s argument he was seized when the officer requested he remove his hands from his pockets and conclude defendant was not seized until the officer frisked him.

Under Terry, the officer may conduct an investigatory frisk for weapons upon reasonable suspicion the individual is armed and dangerous. See also 725 ILCS 5/107-14, & 725 ILCS 5/108-1.01.

Armed & Dangerous

When an officer has a reasonable suspicion during an investigatory stop that the individual may be armed and dangerous, the officer is permitted to take necessary measures to determine whether the person is armed and to neutralize any threat of physical harm.

Police officers need not have reasonable suspicion of criminal activity to conduct a Terry frisk for weapons during a consensual encounter but, rather, need only have reasonable suspicion the citizen is armed and potentially dangerous.

No Suspicion of Crime Required

The fourth appellate district now holds that a police officer may conduct a Terry frisk during a consensual encounter upon developing reasonable suspicion the citizen is armed and dangerous; the officer need not develop reasonable suspicion of criminal activity. In such cases, the seizure and frisk will occur contemporaneously because a consensual encounter is, by definition, not a seizure.

Accordingly, a police officer must have reasonable suspicion the individual is armed and dangerous at the time of the frisk.

By so concluding, defendant’s arguments relating to the lack of reasonable suspicion defendant was involved in criminal activity became inapplicable. Thus, A Terry frisk during a consensual encounter must be predicated by reasonable suspicion the individual is armed with a weapon and, therefore, presently dangerous.

More Than a Hunch

To develop reasonable suspicion, the officer must have more than an “inarticulate hunch”; the officer must “point to specific and articulable facts which, taken together with rational inferences from those facts” demonstrate the suspicion is reasonable. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

Officer's Inferences

When reviewing the reasonableness of an officer’s conduct, it is appropriate to give due weight to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience.

This is an objective standard asking if an individual of reasonable caution would believe that the action was appropriate.

Holding

This is what the officer new:

He was alone with defendant at a late hour in an area he knew was a high-narcotics crime area. He was substantially smaller than defendant. Defendant was coming from a known drug house, in the officer’s experience individuals who deal with narcotics are often armed with a weapon.

Plus, Defendant acted peculiarly by continually placing his hands in his pockets, even after being asked him to remove his hands from his pockets several times defendant ultimately refused to remove his hands and asked why he needed to.

It was objectively reasonable for the officer to suspect defendant may have been armed with a weapon. This officer did not decide to frisk defendant based solely on one fact alone; he decided to frisk defendant based on the quantum of facts he learned while speaking to defendant, coupled with defendant’s refusal to keep his hands visible.

In sum, the court concluded the totality of the circumstances known to the officer at the time of the frisk warranted the reasonable suspicion defendant was armed and thus dangerous, thereby permitting him to conduct a Terry frisk.

In re Jarrell C.

Holding Your Crotch Is Not Indicative Of Carrying A Gun.

Illinois fails to apply the exclusionary rule after police discover a warrant notwithstanding Utah v. Strieff.

See Utah v. Strieff

Episode 185 – Thomas Guts the Exclusionary Rule – Utah v. Strieff

Utah v. Strieff 

In Strieff, a law enforcement officer conducting surveillance on a suspected drug house noticed the defendant exit the house and walk away. The officer followed and eventually confronted the defendant in a nearby parking lot. Then the officer asked for and received the defendant’s identification card and conveyed the information to the police dispatcher. A warrant check revealed the defendant had an outstanding warrant, and he was placed under arrest. During a search incident to arrest, the officer discovered drugs and drug paraphernalia on the defendant’s person. The Court found that the discovery of an outstanding arrest warrant was “a critical intervening circumstance” that “broke the causal chain between an unconstitutional stop and the discovery of incriminating evidence.” See Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016).

This Case

While driving in an unmarked car, Officer Ustaszewski was showing the commander and the captain areas of concern in a high-crime area so they could determine where to best deploy resources. He observed respondent standing on Kenneth Avenue in front of a building that is a known Latin Eagles hangout, holding his waistband or the material of his shorts between the waist and the crotch area like he was “holding something” with his right hand.

Ustaszewski testified that, in his opinion as an intelligence officer familiar with different areas where street gangs hang out, when people hold their waistbands, they are concealing objects, most likely guns. Officer Ustaszewski observed respondent for a few minutes and saw him looking in the direction of the officers and then walking inside the currency exchange.

The commander and the captain followed respondent inside the currency exchange. 

The Encounter

Defendant was waiting in line to purchase a bus card.

Less than a minute and a half later, a police officer (the commander) entered the currency exchange. Respondent indicated that the police officer motioned with his finger for respondent to “come here.” Respondent replied “Who me?” The officer said “Yes, you.”

Respondent stated that the officer had his hand on his gun.

Respondent walked over to the officer at that point. Two other officers entered the currency exchange. One of officers told him to lift up his shirt. Respondent replied,

“What’s the problem, sir? I didn’t do anything.”

The officer told respondent to lift up his shirt “before we go over there and do it for you.”

Respondent lifted up his shirt while turning around.

Next, the officers told him to put his hands on the railing so they could search him. One officer unholstered his gun. Another officer searched and recovered a gun from respondent’s left side.

Respondent was then taken outside to a police car.

The police recovered some drugs from his person.

Other Police Testimony

The officer asked respondent to lift up the front of his T-shirt, but respondent only lifted up the back of the shirt slightly and turned around. Ustaszewski could not see the front of respondent. Respondent then turned around and pulled out his shirt, and the officer saw that the shirt “buckled up on the front.” Ustaszewski stated that at that point, he knew that respondent had a gun.

Ustaszewski testified that he believed respondent was behaving similarly to other gun offenders he had previously arrested based on “the nervousness, the holding of the front waistband, reluct[ance] to lift his shirt up.”

Ustaszewski had respondent place his hands on the railing while Commander Escamilla recovered a handgun from respondent’s front waistband.

He Had A Warrant

The State admitted into evidence a certified copy of a previous juvenile arrest warrant for respondent issued by the circuit court on pursuant to an unrelated case. There was no evidence presented that any of the officers were aware of the arrest warrant issued by the circuit court before or at the time respondent was stopped and searched.

Trial Judge Applies Attenuation Doctrine

After closing arguments, the trial court found that respondent holding the area between his waist and crotch did not give the officers a reasonable articulated suspicion to seize respondent. The court held there was an attenuation of the illegal seizure due to the existence of a valid arrest warrant for respondent at the time of the seizure, and the police conduct was not flagrant.

The court denied respondent’s motion to suppress the evidence.

Issue

On appeal, respondent argues that the trial court erred in denying his motion to suppress.

Respondent contends that the trial court properly determined the investigatory stop was lacking reasonable suspicion but the court erred in its application of the attenuation doctrine. According to respondent, his previous arrest warrant did not attenuate the unlawful detention from the discovery of the evidence when the officers were not aware of the existence of the warrant at the time of the search, before or during the discovery of the gun and the drugs.

Crotch Holding

The mere holding up someone’s pants or putting something in one’s pockets is not a hallmark of criminal activity. In addition, the video exhibit included in the record on appeal corroborates respondent’s testimony that he was not holding his waistband at the time respondent was inside the currency exchange.

Attenuation Doctrine

Three of the exceptions to the warrant requirement involve the causal relationship between the unconstitutional act and the discovery of evidence. 

Those exceptions are known as (1) the independent source doctrine, (2) the inevitable discovery doctrine, and (3) the attenuation doctrine. The attenuation doctrine allows for the admission of evidence obtained unlawfully when the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.

In Utah v. Strieff, the Supreme Court considered whether the discovery of a valid existing warrant is sufficient to break the causal chain between an unlawful stop and the discovery of evidence.

The Court looked to the three factors espoused in Brown v. Illinois, 422 U.S. 590, 602 (1975) for determining whether the attenuation doctrine applied:

(1) the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search, 
(2) the presence of intervening circumstances, and 
(3) the purpose and flagrancy of the official misconduct. 

Analysis

In Strieff, the officer stopped the defendant without reasonable suspicion and then conducted a warrant check, and based on the warrant he discovered, he arrested defendant. The drugs at issue were found pursuant to the search incident to the arrest.

As a result, the causal chain between the officer’s illegal action—the initial, unjustified Terry stop—and the search was “broken” by the intervening discovery of the warrant.

Unlike Strieff, the instant case presents a different situation.

Nothing in the record shows that the officers were aware of the warrant before or at the time respondent was detained and searched. Neither Officer Ustaszewski, nor Commander Escamilla investigated or learned of the existence of the warrant after stopping respondent and before searching him. In other words, there were no intervening circumstances between the initial illegal stop and the discovery of the evidence.

Indeed, an intervening circumstance is one that dissipates the taint of unconstitutional police conduct by breaking the causal connection between the illegal conduct and the evidence. Where an intervening circumstance has been held sufficient to break the causal chain it has been newly discovered information, untainted by illegality. Notably, in all these cases, there was a break in the causal chain prompted by new information or intervening event subsequent to the illegal stop and before the discovery of the evidence.

In sharp contrast, here, the arrest warrant, although a valid one, was unknown information to the police at the time of the search and the discovery of the evidence. Accordingly, the arrest warrant did not do anything to attenuate the taint of the illegal stop.

Unlike Strieff, here, the officers did not discover the arrest warrant between the unlawful stop and the discovery of the gun and the drugs.

Holding

Accordingly, since there was no intervening circumstance to cause a break between the police misconduct and the evidence recovered, we find that the second factor favors suppression of the evidence.

We reverse the court’s holding on this issue.

Based on the foregoing, we conclude that the trial court erred in denying respondent’s motion to quash arrest and suppress evidence obtained as a result of the illegal stop. Because the State cannot prevail on remand without the suppressed evidence, we reverse respondent’s adjudication of delinquency.

Reversed outright.

People v. Gomez

Acting Kooky In The Back Seat Is Going To Get You Ordered Out Of The Car.

Police roll up on a parked car and order everyone out; they find a gun.

Gist

Defendant was sentenced to 7 years for a gun.

The Car

3 officers are in an unmarked squad car when they notice the same Grand Marquis driving around the neighborhood. Eventually, the car pulls over. Defendant is in the back seat with another guy. The police talk to the driver window to window from the cars.

He asked the driver “what he was doing, [and] if he lived around there.” They did not box in the car.

The driver initially responded that he lived down the street; however, the driver admitted that he did not live down the street, but resided somewhere on the “other side of Pulaski.”

Rear Seat Passenger

As he spoke to the driver of the Grand Marquis, Detective Amato was able to observe defendant, who was seated directly behind the driver in the rear of the vehicle. When the conversation began, defendant was “seated upright” with his torso visible to the officers.

As the conversation proceeded, however, defendant began “slouching down in the car.

He just kept on like steadily slouching down as the officers were talking to the driver. So his head was, you could only see like his head at one point in time.

That seemed suspicious.

Cops Had Enough

The cops get out of their car.

As a detective stood by the driver’s side of the Grand Marquis, he observed defendant leaning away from him and toward the middle portion of the seat with his right forearm covering the waistband of his pants. Defendant’s right hand was actually under his shirt.

The detective again found defendant’s behavior to be “suspicious,” and as a result, he asked to see defendant’s hands.

Initially, defendant only raised his left hand into the air and continued positioning his right arm and hand along his waistband. He then started showing his right hand, while still attempting to use his right forearm to shield the waistband of his pants.

He Has A Gun

Based on his observations of defendant’s behavior, the detective believed that defendant had a weapon on him and ordered all three occupants of the Grand Marquis to exit the vehicle. As defendant was exiting the vehicle, he still had his arm over his waistband.

After he completely extricated himself from the car, however, he then immediately turned around and he bent his entire body over the rear of the car. In response, the Sergeant grabbed defendant by his arms and stood him upright.

When he did so, a handgun dislodged from defendant’s waistband and fell to the ground. The detective immediately recovered the gun, which was loaded, and defendant was then placed into custody.

Statements About The Gun

After the police recovered defendant’s weapon, defendant “spontaneously” explained that he had just discovered the gun in a garbage can and asked the officers to “give [him] a break.” At the police station defendant admitted that he “was holding the gun for S.D.’s from 59th Street.”

Defendant and the two other occupants of the Grand Marquis were not acting aggressively toward the officers before they were ordered out of the vehicle.

3 Tiers Of Police Contact

Courts evaluating the nature and propriety of police-citizen encounters have grouped those interactions into three tiers:

(1) an arrest or detention of an individual supported by probable cause; 
(2) brief investigative stops, commonly referred to as “Terry stops,” supported by a reasonable, articulable suspicion of criminal activity; and 
(3) consensual encounters involving neither coercion nor detention and do not implicate the fourth amendment.

See People v. Luedemann, 222 Ill. 2d 530, 544 (2006); People v. Smith, 2016 IL App (3d) 140648, ¶ 28.

Seizure

For purposes of fourth amendment analysis, a person is considered seized when a law enforcement officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.

More specifically, the relevant inquiry to determine whether an individual seated in a parked vehicle has been seized is whether a reasonable person in the defendant’s position would have believed that he was free to decline the officer’s requests or otherwise terminate the encounter.

Our supreme court has emphasized that this “test presupposes a reasonable innocent person.” Relevant factors to consider when determining whether an individual was seized and not involved in a consensual encounter include:

(1) the threatening presence of multiple officers; 
(2) the display of a weapon by an officer; 
(3) some physical touching of the individual’s person; and 
(4) the use of language or tone of voice indicating that compliance might be compelled.

United States v. Mendenhall, 446 U.S. 544, 554 (1980).

“In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” People v. Fields, 2014 IL App (1st) 130209, ¶ 22.

Police Can Still Ask Questions

It is well-established, however, that a seizure does not occur simply because a law enforcement officer approaches and poses questions to an individual as long as that individual is willing to listen.

Indeed, even where an officer has no basis for suspecting an individual, he may nonetheless question that individual, request identification, and seek the individual’s consent to search. Importantly, “a confrontation with a police officer is not a seizure on the basis that the officer’s authority produces an inherent pressure to cooperate.

Rather, an encounter between a police officer and a civilian is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.

Analysis

The record establishes that after the detective stopped his vehicle alongside the car, he conversed briefly with the driver while the windows of both vehicles were lowered. Although the detective was accompanied by two other officers at the time, none of the officers brandished weapons or physically touched defendant or any of the other occupants of the vehicles while he spoke to the driver.

Moreover, there is no evidence that the tone and tenor of the detective’s voice when he posed several questions to the driver was forceful or coercive. Although defendant characterizes the questioning as “relentless” and “persistent,” the record does not support that characterization.

Rather, it appears that the detective simply posed two general inquiries to the driver, asking him “what he was doing, [and] if he lived around there.” After hearing the driver’s responses, the detective testified that he then posed one follow-up question, and requested the driver to identify his “exact address.” 

A seizure does not occur simply because a law enforcement officer approaches and poses questions to an individual as long as that individual is willing to listen and the officers do not convey by their words or actions that compliance with their requests is required.

Accordingly, we find that defendant was not subject to an immediate seizure when the squad car was stopped alongside of the parked Grand Marquis and asked the driver several questions, which he was willing to answer.

The Order To Get Out Of The Car

This does not end our inquiry, however, given that “a consensual encounter will lose its consensual nature if law enforcement officers convey a message, by means of physical force or show of authority, that induces the individual to cooperate.” Gherna, 203 Ill. 2d at 179.

Although the officers approached with flashlights, the use of a flashlight is not per se coercive, especially where, as here, the police-citizen encounter took place at night and the flashlights were simply used to illuminate the scene.

Immediately after the officers approached the car, however, defendant began leaning way from the officers toward the center of the car and used his forearm to shield his waist from view. At that point, the officers ordered all of the occupants of the Grand Marquis to put their “hands up.”

When defendant did so in a manner that allowed him to continue to conceal his waistband, the occupants were then ordered to exit the vehicle. We find that the positioning of the officers around the vehicle, coupled with orders for the vehicle’s occupants to put their hands up and to exit the vehicle, constituted a show of force and authority, which transformed the consensual encounter to a seizure.

So, Was The Seizure Reasonable?

To justify a Terry stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

Here, we find that based on the totality of the circumstances, the police had reasonable suspicion to suspect that criminal activity was afoot at the time they initiated the seizure.

The police had initially pulled alongside of the vehicle after he had noticed it in the neighborhood he was patrolling on three occasions during a short 30-40 minute period. The vehicle had been mobile on the first two viewings, but was parked when he saw it for the third time. Upon encountering the vehicle for the third time, the detective pulled up alongside of it and issued several questions to the driver, who was responsive to his questions. Although responsive, the driver admitted that he lied when he stated that he lived “down the street.”

During the course of this brief encounter, the detective observed defendant slouch further and further down in his seat until only his head was visible. At that point, the officers exited their unmarked car and approached the Grand Marquis.

Upon his approach to the driver’s side of the car, defendant immediately leaned toward the center of the vehicle with his right hand inside his shirt and his right forearm covering his waist. Based on his years of experience as a police officer, defendant found defendant’s continued furtive movements to be suspicious and became concerned with officer safety.

The Terry standard does not require an inevitable conclusion or absolute certainty; rather, it simply requires a reasonable suspicion that criminal activity is afoot.

In an effort to dispel his suspicions that criminal activity was afoot and in order to ensure officer safety, the detective ordered defendant and the other occupants of the Grand Marquis to raise their hands into the air. When defendant did so in a manner that allowed him to continue concealing his waist, the detective’s suspicion that defendant was armed was strengthened, and he subsequently ordered defendant and the other occupants of the Grand Marquis.

The gun then fell to the ground when defendant exited the vehicle.

See Also

People v. Holmes, 2017 IL 120407 (July)(notwithstanding Aguilar probable cause for an arrest exist when police see a gun) – Episode 387

The record rebuts defendant’s argument that he was seized “solely because [the officers] suspected he possessed a firearm.” As such, we need not consider his argument concerning the propriety of a hypothetical Terry stop predicated solely on an officer’s suspicion that a defendant was in possession of a firearm. Defendant emphasizes throughout his brief that mere possession of a firearm is not a crime and that the officers lacked reasonable suspicion that his possession of the firearm was unlawful until after the seizure occurred.

Although it is true that simple possession of a firearm is not itself a crime, the fact that the officers were not aware of defendant’s status as a convicted felon and parolee or his lack of a FOID card, which ultimately formed the basis for the specific criminal weapons charges filed against him in this matter, is not dispositive because defendant’s furtive behavior and repeated efforts to conceal the weapon provided the officers with reasonable suspicion that defendant was not in lawful possession of the firearm.

To accept defendant’s argument that the initial detention was invalid because the officer did not yet know the specific crime that had been committed would be directly contrary to the goals of Terry to encourage crime prevention and detection where there is reasonable suspicion that a crime has been committed.

See also Colyar, 2013 IL 111835, ¶ 49 (rejecting a defendant’s argument that police officers are required to completely eliminate any legal explanation for a defendant’s suspected possession of a firearm and establish that the defendant was committing a weapons offense before investigating further during a Terry stop).

Holding

The circuit court did not err in denying defendant’s motion to suppress.

In re D.L.

Running Away From A Shot’s Fired Scene Seems Reasonable.

Kid is seen walking away from the location of a “shots fired”, he starts to run, when they catch him he has a gun.

Gist

Respondent was charged with various gun charges in juvenile court. He filed a motion to quash defendant’s arrest and suppress evidence, alleging that he was subjected to an unreasonable search and seizure.

Shots Fired

Officer Scaduto testified that on the evening of March 28, 2017, he was working with three partners—Officers Borne, Riley, and Boubach—in an unmarked squad car. The officers were in plainclothes, wore “CPD badges” and had “police” on the back of their vests.

Around 8:20 p.m., the officers received a dispatch concerning multiple calls of shots fired on “the 117th block of Loomis.” The dispatch gave no information about the identity of the suspects or callers, other than “more than one person called in th[e] incident.”

Quick Response

Officer Scaduto and his partners, who were about “one minute away on Halsted Street,” responded to the dispatch and began to drive toward the 117th block of South Loomis Street. One minute later, while travelling westbound on 116th Street, the officers saw respondent and another male walking eastbound on the sidewalk about “two houses away from Loomis.”

Officer Scaduto did not know respondent, or see any bulges in his clothing. Officer Scaduto observed that respondent and the other male were “walking quickly” away from the area of the shots fired call. There were no other people on the street at the time, and Officer Scaduto observed respondent for approximately five seconds.

Approach The Kid

Officer Scaduto stated that, “[d]ue to the fact that it was a shots fired call in that area and [respondent] was walking quickly away from that shots fired call, we attempted to conduct a street stop *** [to] have a conversation about the shot[s] fired call and if they heard anything.”

The officers approached, and Officer Scaduto “told [respondent] to stop so we could have a conversation about the shots fired call.” When asked whether this was “a request or *** an order,” Officer Scaduto clarified that “[i]t was an order.” The male who was walking with respondent “complied” and headed toward the police car. Respondent, however, “did not comply with [Officer Scaduto’s] order and began running” northbound down an alley.

They Catch Him

Officer Scaduto pursued respondent on foot, did not lose sight of him, and detained respondent less than one minute later. Once he apprehended respondent, Officer Scaduto handcuffed respondent, “detained him[,] and placed him in custody.” Officer Scaduto conducted a pat-down because he had “reason to believe that [respondent] ran *** because he was concealing a firearm.”

Officer Scaduto denied that respondent was arrested at this point, stating that it was “part of the field interview.”

The Pat Down

During the pat-down, Officer Scaduto recovered a .380-caliber semiautomatic handgun from inside the pocket of respondent’s jacket. The handgun was “stove piped,” meaning it had a malfunction that “only happens after you actually shoot the firearm.” After he recovered the weapon, Officer Scaduto placed respondent under arrest.

Officer Scaduto explained that he performed a pat-down “[b]ased on the totality of the circumstances, the shots fired call, the minor respondent walking away from the area of the shots fired call ***, and that he and another individual were the only ones on the street at the time of the shots fired call in that area.” He further asserted that he had “reason to believe that he was concealing a firearm” based on the “shots fired call” and “that he fled from me and didn’t obey *** my verbal commands.”

Defendant’s Argument

Based on the above testimony, respondent argued that before Officer Scaduto had ordered him to stop, the officer had only observed him for five seconds, at which time he had been engaged in “normal behavior” by “walking away from a shooting scene.” Respondent pointed out that Officer Scaduto did not observe any bulges or weapons and that there was no description, eyewitness, or informant connecting respondent to the shots fired. Respondent further argued that it was not enough to be in an area where criminal activity occurred and that flight from the police was not, standing alone, sufficient to establish probable cause.

State’s Argument

The State specifically contends that the totality of the circumstances supported a reasonable articulable suspicion that respondent “may have been involved in criminal activity” and a reasonable belief that respondent was armed and dangerous.

In this case, the State argues that Officer Scaduto’s intent at the time he ordered respondent to stop is irrelevant, because respondent was only “seized” for purposes of the fourth amendment when Officer Scaduto captured him after he fled down an alley.

The State asserts that the officer was justified in stopping respondent at that point, describing the “totality of the circumstances” as “there were numerous calls of shots fired; *** respondent and his companion were walking quickly away from the crime scene of shots fired; *** no other people were in the area except for respondent and his companion; [and] *** the officers attempted to conduct a field interview but respondent turned around and fled.” ¶ 21 In so arguing, the State seemingly concedes that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop of respondent at the time that he initially ordered him to stop.

We agree.

Trial Court Agrees

The circuit court granted respondent’s motion to quash arrest and suppress evidence. The court concluded that “the fact that two individuals happen to be on the street where shots are fired, does not make them subject to give up their fundamental civil rights.”

Fourth Amendment

The fourth amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. “This provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” People v. Thomas, 198 Ill. 2d 103, 108 (2001).

Under the Terry exception, the police may conduct a brief investigatory stop “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The police officer “must be able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant that intrusion.” Thomas, 198 Ill. 2d at 109. “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.

The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity. [Citation.]” Wardlow, 528 U.S. at 123-24. The underlying facts are viewed “from the perspective of a reasonable officer at the time that the situation confronted him or her.” Thomas, 198 Ill. 2d at 110.

Analysis

At that time, the officer had observed respondent for five seconds as he was “walking quickly” on the sidewalk of 117th Street. Although the officer described respondent as walking “away from the area of the shots fired call,” his testimony also established that respondent was not walking on either 116th Street or Loomis Street, the intersection where the shots were reported to have originated, and instead respondent was between one and two blocks away from that location. Nevertheless, as the trial court concluded, most people would be inclined to make a quick departure from the scene of gunfire, and accordingly, such behavior would not be unusual. Even Officer Scaduto implicitly acknowledged that he had no suspicion that respondent had engaged in criminal conduct at that time, since his claimed intent was to “have a conversation” with him about whether he had “heard anything” regarding the shots fired.

Moreover, the circumstances surrounding Officer Scaduto’s order were clearly meant to exhibit a show of authority that would be indicative of a seizure. Specifically, Officer Scaduto and three other officers approached respondent, and Officer Scaduto used particular language when testifying, which indicated that he intended to convey to respondent that compliance with his request was mandatory.

Yea But He Ran

The court quoted Professor LaFave: “The flight of a person from the presence of police is not standing alone sufficient to establish probable cause, unless of course the circumstances are such that the flight from the officer itself constitutes a crime. Were it otherwise, “anyone who does not desire to talk to the police and who either walks or runs away from them would always be subject to legal arrest,” which can hardly “be countenanced under the Fourth and Fourteenth Amendments.”  (quoting 2 Wayne R. LaFave, Search and Seizure § 3.6(e), at 323-24 (3d ed. 1996)).

The State argues, without supporting authority, that a “reasonable person innocent of a crime would not flee from the police” (emphasis in original). However, the United States and Illinois Supreme Courts have held otherwise. See Wardlow, 528 U.S. at 125 (Accepting as “undoubtedly true” that “there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity.”)

Even considering respondent’s flight as part of the totality of the circumstances, we still conclude that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop at the time that respondent was apprehended.

Although “[u]nprovoked flight in the face of a potential encounter with police may raise enough suspicion to justify the ensuing pursuit and investigatory stop” (emphasis added) (Thomas, 198 Ill. 2d at 113), there is no bright-line rule authorizing the temporary detention of anyone who flees at the mere sight of the police (see Wardlow, 528 U.S. at 126. To the contrary, it is well settled that flight alone is not sufficient to establish reasonable suspicion that a person has committed, or is about to commit, a crime.

It is only when that flight is coupled with other factors that it may support reasonable suspicion justifying a Terry stop. In this case, the trial court found no other factors supporting a finding that Officer Scaduto had reasonable suspicion that respondent committed or was about to commit a crime. As discussed above, aside from his flight, there was no testimony showing that respondent was acting suspiciously in any way. In these circumstances, we conclude that respondent’s flight alone did not justify the subsequent Terry stop.

Wardlow Rejected

In so holding, we also reject the State’s reliance on Wardlow, 528 U.S. 119. In Wardlow, the Supreme Court held that the defendant’s unprovoked, “[h]eadlong flight” was one factor among several that, taken together, supported an officer’s reasonable suspicion of criminal activity.

In particular, the Supreme Court noted that the officers saw defendant in an “area known for heavy narcotics trafficking,” where the officers expected to encounter “drug customers” and “lookouts.” The officers saw the defendant standing next to a building holding an opaque bag, and upon looking in the direction of the officers, the defendant fled through a gangway and an alley. The Supreme Court held that the above circumstances created a reasonable suspicion of criminal activity which justified a Terry stop.

Here, however, unlike in Wardlow, the trial court found no other factor supporting reasonable suspicion to justify a Terry stop when considering the totality of the circumstances. We do not find the trial court’s conclusion on this point to be manifestly erroneous.

Bad Stop Bad Pat Down

Having concluded that the police were not justified in temporarily detaining respondent, we must also conclude that the subsequent search was not justified. A police officer making a reasonable investigatory stop may conduct a protective search if he has reason to believe the suspect is armed and dangerous. Adams v. Williams, 407 U.S. 143, 146 (1972).

“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” However, the right to perform a protective search presupposes the right to make the stop. The police may only perform a protective search if they are entitled to stop the person in the first place.  In order for a frisk to be constitutionally reasonable, (1) the stop must be proper, (2) the officer must have reason to know that the defendant is armed and dangerous, and (3) the scope of the search must be strictly limited to a search for weapons.

Since Officer Scaduto did not provide specific and articulable facts justifying the Terry stop, the protective search performed during that stop also lacked a sound constitutional basis.

Holding

After giving the appropriate deference to the trial court’s findings of fact, we cannot conclude that the trial court was manifestly erroneous when it found the defendant had met his burden of showing that the seizure and search were unreasonable and violated his rights under the fourth amendment.

For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

People v. Timmsen

Avoiding A Traffic Roadblock May Create Reasonable Suspicion Justifying a Traffic Stop.

Apparently, the police can stop you for trying to legally avoid a roadblock.

Facts

Defendant made a U-turn 50 feet from a roadblock to avoid it.

He was stopped and arrested for DWLS and possession of cannabis.

Issue

Does avoiding a traffic roadblock itself create a reasonable suspicion of criminal activity justifying a traffic stop by police?

Holding

The Illinois Supreme court held that defendant’s avoidance of the police roadblock provided reasonable suspicion for an investigatory stop.

Reasoning

The court felt that Defendant’s U-turn across railroad tracks just 50 feet before the roadblock is the type of evasive behavior that is a pertinent factor in determining reasonable suspicion.

Further, since the roadblock was well-marked, it was readily identifiable as a roadblock rather than being mistaken for an accident site or a road hazard, which one may generally desire to avoid.

Moreover, the roadblock was not busy, which suggests that a driver would not have feared a lengthy delay. When considering “the totality of the circumstances—the whole picture,” the deputy had reasonable suspicion to conduct an investigatory stop. Evasive behavior and a person’s refusal to speak with an officer when an officer approaches him are not one and the same.

Kinda-Like Head-Long Flight

This defendant was acting comparable to Wardlow who was do anything but going about his business. He was suspiciously actively avoiding contact with the police.

The court refused to adopt any bright line rules and said its always a totality of the circumstances determination. Avoidance as simply one factor in determining the existence of reasonable suspicion.

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An Illinois Wrongful Conviction Reviewing Court Says This Guy Didn't Do It

May 23, 2018 19:40

Description:

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22)

Involuntary confession and improper closing arguments lead to this Illinois wrongful murder conviction.


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Gist

In 2013 Maniac Latin Disciples, encountered several members of the Sureños, a rival street gang that operates in Wheeling.

Four gunshots rang out.

One person gets hit in the back and dies.

Holding

The court reversed the conviction due to the insufficiency of the evidence.

We hold that section 103-2.1 required the court to suppress the video recorded statements of Sanchez, made after police initiated unrecorded custodial questioning in a murder investigation, when police had not informed Sanchez of his Miranda rights. Police induced an involuntary, unreliable confession. The trial court erred when it denied the motion to quash the illegal arrest and the motion to suppress statements.

Analysis

Around 9:30 p.m. the police encountered the defendant and a codefendant being chased by Sureños. The Sureños said these two knew something about the shooting.

Defendant is handcuffed and arrested right away. This arrest was illegally and without probable cause.

After the illegal arrest, police questioned Sanchez twice about the murder, without advising Sanchez of his Miranda rights. Police also failed to record the questioning, in violation of section 103-2.1(b) of the Code of Criminal Procedure (Code). 725 ILCS 5/103­ 2.1(b).

The Code expressly places on the prosecution the burden of showing that an exception excuses them from the rule requiring recording of interrogations. 725 ILCS 5/103-2.1(e). The prosecution presented no evidence of when the victim died, and therefore the prosecution did not meet its burden of showing the statement admissible under subsection (e)(viii). 725 ILCS 5/103-2.1(e)(viii).

Due to the violation of section 103-2.1(b), the trial court had a duty to suppress all subsequent statements from Sanchez unless the State showed by a preponderance of the evidence that the subsequent statements were both voluntary and reliable. 725 ILCS 5/103­ 2.1(d), (f).

Involuntary Statement

To determine the voluntariness of a statement, the court should consider “the defendant’s age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises.” People v. Gilliam, 172 Ill. 2d 484, 500-01 (1996).

Here, Sanchez was 18 years old, with no criminal background, at the time of the interrogation. Police arrested him without probable cause and held him for 12 hours before he confessed. Most notably, the detectives told Sanchez he could not call his mother until he told them the truth about the shooting, and they told him they already knew he shot the victim.

The court said the evidence showed that Sanchez did not voluntarily make the statements. By refusing Sanchez’s request to call his mother, the detectives also violated section 103-3(a) of the Code. 725 ILCS 5/103­ 3(a).

Even The State Didn't Believe The Statement

The prosecution conceded that the jurors should not rely on almost all of the statements Sanchez made in the lengthy interrogation.

The prosecutor argued that the jurors should not believe Sanchez’s statement about who brought the gun. Nor believe Sanchez’s statement that Sanchez had the gun between the 540 and 544 buildings when it discharged. The prosecutor argued that the jurors should not believe Sanchez’s statement that the gun discharged accidentally.

Nor can the prosecution accept as true Sanchez’s statement that before he got hold of the gun, the defendant and the codefendants walked in the area to the north and east of the shooting.

The only words Sanchez spoke that the prosecutor wanted jurors to believe came when Sanchez said he held the gun and “it went off.”

Also An Unreliable Statement

Whether defendant’s statement was reliable is a separate inquiry from whether it was voluntary.

Factors other than voluntariness have bearing on the reliability of a confession. Courts have frequently looked to corroboration as the most significant indicator of the reliability of confessions.

The court held that corroboration of a statement should be a factor in determining the reliability of a confession under section 103-2.1(f).

CoDefendant Corroborates Nothing The testifying witness said Sanchez headed toward the 540 and 544 buildings, holding the gun, shortly before he heard the shots. But most of the recanted video recorded statements shown at trial flatly contradicted Sanchez’s confession. Sanchez said Estrada brought the gun; the testifying witness said Sanchez bought the gun the week before the shooting and brought it to the scene. Sanchez described the gun as black with a black handle; the testifying witness described the gun as silver with a brown handle. Sanchez said Estrada took the gun from him and ran west from the shooting scene; the testifying witness said Sanchez took the gun, headed east, and threw the gun in the pond north of the 430 building. Eyewitness testimony and the physical evidence also contradict Sanchez’s confession. The shot came from Equestrian Drive, south of Orozco, and hit him in the back as he stood facing north. The shot did not come from anywhere near the spot where the testifying witness confirmed that Sanchez stood when he, in his recanted statement, said he heard the shots. Why Didn't He Just Run To His Car?

Moreover, if Sanchez fired the shots from Equestrian Drive and lied about it, as the prosecutor theorized, Sanchez would have stood no more than 40 yards from his car, which police found parked on the west side of the 492 building.

Why wouldn't he have just jumped in his car?

The Initial Account

The initial account of Sanchez and every other witness to police explains how Sanchez arrived north of the shooting scene. The group defendant was in was trying to go from one care to another when they began to be chased.

The evidence at trial ran counter to Sanchez’s confession.

Insufficient Evidence To Convict

No physical evidence connected Sanchez to the crime.

Police never found the gun or the casings from the fired bullets, and they found only one of the four fired bullets. The prosecutor conceded that police never found the bullet that killed the victim. No witness testified that Sanchez held a gun. No witness saw Sanchez on Equestrian Drive, where the shots came from. Sanchez’s hands and clothes bore no trace of antimony, no trace of barium, and no trace of lead. The testimony of all witnesses and all the physical evidence fits well with the initial account given to police. That account, which matched the testifying witness testimony in court, is also consistent with Miguel’s testimony that he stood on Bridle Trail, talking with Sanchez and the others, before he left  and encountered the victim when he was shot. When Sanchez and the others realized the shots hit someplace near the 490 building, they had reason to fear Miguel had been shot. Moreover, the prosecution failed to present a coherent theory of the case. Motive Not Required But State Offers No Reason For An Inexplicable Shooting

According to the prosecution,

Defendant went home to get a gun to deal with opposing gang members.

Later that evening, Sanchez was talking with some Maniac Latin Disciples and others on Bridle Trail, when Miguel left to escort a friend to the 490 building. According to the prosecution, a few minutes later, knowing that his friend and gangmate Miguel had gone toward the 490 building, Sanchez walked unseen to Equestrian Drive and fired wildly at a group that included Miguel and Miguel’s father.

Why would he shoot at his own friend?

Then, rather than run to his car, Sanchez ran around the neighborhood for half an hour, with no apparent purpose other than to work up a sweat and persuade an opposing gang to chase him.

Why Did The Jury Convict?

The overwhelming implausibility of the prosecution’s account presents us with the question:

Why did a jury of 12 ostensibly reasonable persons sign a verdict convicting Sanchez of murder?

Well, He Confessed

First, confessions have exceptional persuasive force, and as we have already concluded, the jury should not have heard Sanchez’s incriminating statements.

Prosecution Was Persuasive

Second, the prosecutor insinuated that Sanchez’s hands had gunshot residue and the Sureños accused him of shooting the victim, and the prosecutor shifted the jurors’ focus from the evidence against Sanchez to the issues of whether defense counsel had grievously insulted police and whether jurors doubted the integrity of the officers.

Sanctions Against The Police

The court recommend that if police departments again use the so-called “presumptive GSR test,” the departments should inform officers and the subjects of the tests about what the tests actually measure, and what kinds of contact can produce positive test results.

They also recommend the consideration of possible sanctions against the officers for violating section 103-3(a) of the Code, which establishes the suspect’s right to make phone calls. 725 ILCS 5/103-3(a) (West 2012).

Deception In Interrogations

While our supreme court has expressly approved the use of deception to obtain confessions, this case shows us how the use of deception in interrogations leads to false confessions.

Deceptive practices contribute to an atmosphere in which whole communities act with hostility toward police. The court said if police want the members of the community to treat them with respect and help them in their efforts to reduce crime, police should renounce the use of deceptive practices in law enforcement so that the members of the community learn that they can trust police officers to treat them honestly.

The practice of deception in interrogations and other settings can destroy the trust needed as a foundation for the relationship between police officers and the members of the communities the police officers have a duty to serve and protect.

Conclusion

● No witness saw Sanchez with a gun.

● No witness saw Sanchez near the spot from which the fatal shot came.

● The prosecution showed no connection between Sanchez and the single spent bullet found at the scene.●

●  Police found no trace of antimony, barium, or lead on Sanchez’s hands and clothes.

● The prosecutor did not present a plausible account of Sanchez’s actions around the time of the shooting, and police admitted that Sanchez and the persons with him shortly before the shooting gave a plausible, consistent, exonerating account of Sanchez’s conduct. The court held that the prosecution did not present sufficient evidence to sustain the conviction.

But here, the record leads to a further conclusion. The evidence convincingly shows that Sanchez did not murder the victim.

Accordingly, the court reversed the judgment of the trial court outright.

Defendant Arrested

About 30 minutes after police arrived, an officer saw Sanchez and his buddy, Estrada , running toward the police, chased by several members of the Sureños gang. Conway handcuffed Sanchez and Estrada and ordered them to sit on the curb. 

More Details About The Case

The codefendant who recanted was found in the bushes north of the shooting. Marked with green "FB" on the map.

Defendant and essentially everyone interviewed said defendant was originally located south of the location where the shots where fired.  See green "X.

Originally, they said the got in a car and drove north and parked it north west of the shooting. See white rectangle in upper left corner. They got out and split up  because the Sureños started chasing them. Defendant and a codefendant went left. Sanchez went up and to the right.

Eventually, police see defendant and a codefendant running south towards the are a of the shooting being chased.

GSR Testing

Defendant was given a presumptive GSR test that was positive. Police used that against defendant in his interrogation. Later GSR testing by the state lab found nothing.

Shenanigans In The Interrogation

When the detectives confronted Sanchez with the positive result of the “presumptive GSR test,” Sanchez asserted repeatedly that he had not seen or shot a gun that evening. The detectives told Sanchez that his story was “bullshit,” and repeatedly, falsely asserted that several witnesses had said they saw Sanchez carrying a gun that evening.

The detectives said the “tests don’t lie” and suggested that Sanchez was “scared [he was] going to get shot.”

The detectives suggested that Sanchez should blame Estrada for the shooting. Sanchez began crying and said repeatedly,

“I didn’t do anything.”

Police moved the table out from between them, came right next to Sanchez, and further emphasized that he would not believe Sanchez’s account.

Bush said, “This was an accident. You didn’t mean for this to happen, did you?”

Again, Sanchez said, “I didn’t do anything, sir.”

Bush answered, “[W]e’re over that. There’s too many people that saw you.” This statement was, again, false.

Again, Sanchez said, “I didn’t do anything.”

Then He Begins To Say Something...

About 10 hours after police brought Sanchez to the station, he changed his account. They asked, “Did Brian do something? *** What did Brian do? You’re almost there.”

Sanchez answered, “He’s the one that shot.” Bush asked where Estrada stood when he shot the gun. Sanchez said, “[t]he farthest parking lot.”

The detective suggested that Estrada stood on Equestrian Drive or by the tennis courts. Sanchez pointed to a spot on the map police showed him. Heaccused Sanchez of lying, and said, “Everybody’s telling me that you had the gun.”

Sanchez said, “I didn’t have anything, sir. I put it on my mom’s life right now, ’cause she’s so sick right now, that I didn’t have any gun, sir.”

Bush suggested again, “this was just self-defense?”

Sanchez said, “I didn’t shoot nobody,” “I didn’t have any gun,” and “I want to see my mom.”

The detective said, “I can let you see your mom after we talk about this and get the truth.”

Again Sanchez said, “I did not do anything.”

They again accused Sanchez of lying. The detective said, “it was an accident. Is that correct?”

Sanchez responded, “Sir, I want to see my mom.”

They limited Sanchez’s choices: “I need to hear it from you, then, if it was an accident or did you intend to hit him?”

Sanchez said, “I don’t have a gun.”

The detective persisted: “[E]verybody’s telling me it was you and plus the GSR, you gotta understand it, okay?”

Sanchez said, “Sir, if it was me, sir, I take the blame, I would say it,” and “I’m telling you the truth.”

Ok The Other Guy Did It

The Detective returned to the tactic of getting Sanchez to blame Estrada.

Sanchez eventually said, “I held it, but Brian shot it.”

Through tears he said, “I want to get out of here. My mom is worried about me.”

Sanchez explained in his new story that Estrada showed him the gun and he held it briefly, then Estrada took it back and ran off to shoot. Sanchez said his mother “just had surgery a day ago,” and “[s]he doesn’t know right now. She’s worried about me.”

The detective accused Sanchez of lying and said, “These tests only happen when you fire a weapon.”

Sanchez still said, “I didn’t fire no weapon. It was Brian. I didn’t fire anything, sir.”

Detective said, “Jesus. Unfortunately, we already know that you did.” He encouraged Sanchez to tell his side of the story.

Sanchez said, “I give you my side, sir, you still won’t believe me.”

A Different Version

A few minutes later, Sanchez tried another revised account.

He said, “It went off by itself,” and then Estrada took it from him.

Detective asked, “Is it a revolver or a semi-automatic?”

Sanchez said, “It was a revolver,” and “I want to go home to my mom.” Sanchez attempted to complete the story.

He pointed on the map to where he said the gun discharged. He found a spot between the buildings numbered 540 and 544, close to 100 yards north of where the victim stood when the bullet hit him. He explained that Estrada wanted to shoot, because “he thought they had shot Miguel.”

Estrada had the gun, and when he handed it to Sanchez, “it went off.” Sanchez said he “ran to the cops” because Sureños “told [him he] was a dead man.”

They asked Sanchez to retell the evening’s events. Sanchez said that Miguel joined Sanchez, Estrada, Flores, and Rodriguez on Bridle Trail. Rodriguez got a call, and Miguel left with Rodriguez just before Scheffler, with Brett and Leslie, stopped by in Scheffler’s white car. Sanchez, Estrada, and Flores got into Scheffler’s car, and Estrada showed Sanchez Estrada’s gun, a black revolver. Estrada said he “was gonna get those guys back.”

Estrada hopped out of the car, and Sanchez ran with him.

Sanchez showed on the map that they got out of Scheffler’s car by the 410 building.

After the gun accidentally discharged, he and Estrada ran in different directions, Estrada carrying the gun. When the Sureños chased them, they met again just before running up to the Sergeant who arrested them.

Why The Crazy Route

Police sought to clarify the route Estrada and Sanchez took when they left Scheffler’s car:

“DETECTIVE OROPEZA: —why did you guys walk around this way? Why?

MR. SANCHEZ: Brian didn’t want to go through cops. *** *** I was just trying to go to my car. I was just trying to go home.”

Earlier that day, Sanchez had parked his car in a lot on the west side of the 492 building. Police found the car there after they arrested Sanchez.

Detective said, “Listen, you did good. I’m glad you were honest with us.”

Sanchez immediately asked to see his mother.

They said the police needed to “clarify some things” first.

Sanchez pleaded, “Let me talk to her. I want to talk to my mom.”

The detective said, “You will talk to your mom, okay? All right? Just not right now, okay?”

An hour later, they asked for a repetition of the confession.

What They Want

Sanchez said Scheffler drove from Bridle Trail to Longacre Lane to Equestrian Drive to Illinois Route 83 to Palatine Road. Scheffler stopped on Palatine Road, and Estrada said he wanted to shoot Sureños because he felt disrespected in the fight that took place around 3:30 p.m. on May 1.

Scheffler drove them on Palatine Road to Wheeling Road and then to the parking lot by the 410 building.

Sanchez marked on the map where he, Estrada, and Flores stood when the gun went off, when they were between the buildings numbered 540 and 544, north of the 486 and 492 buildings near where the victim was shot.

Sanchez said that when Estrada looked ready to shoot, Sanchez tried to take the gun away from him, and it went off in his hand. After the four shots discharged, Estrada took the gun and ran west toward the park. They asked for a further description of the gun, but Sanchez said only it was black with a black handle, and Sanchez did not know the caliber.

Now Can I Talk To My Mom?

The deetective asked, “[W]as it hard to pull the trigger?”

Sanchez answered, “Yeah, it was.”

At the conclusion of the questioning, Sanchez again said, “I just want to talk to my mom.”

The detectives again told Sanchez to wait. More than an hour and a half later, Sanchez knocked on the door of the interview room. He asked, “Can I talk to my mom yet?”

Detective said, “not right now.”

Sanchez asked, “When can I talk to my mom?”

Detective said, “when *** we get to it.”

Five minutes later, Sanchez knocked again and asked again, saying, “She doesn’t know where I am. Please let me talk to her.” He was told him to wait.

Five minutes later Sanchez asked again.

This time they said, “I got food coming for you.”

Sanchez answered, “I don’t want any food. I want to talk to my mom.”

Again the response was “Not right now.”

When they brought food a few minutes later, Sanchez repeated his plea, to the same effect. After five minutes, Sanchez knocked again and asked to talk to his mother, “[j]ust a quick call.”

Detective said, “No, that cannot be done.”

Sanchez waited almost 10 minutes before knocking again, with the same result.

Then 30 minutes later, a different officer said he could call his mother “in a little bit.”

Twenty minutes later, another knock, another request, and another denial.

Fifteen minutes later, another knock, and the detective said, “what was the answer to your question?” Sanchez said only, “Officer, please.”

Police came in of their own accord 15 minutes later, at 2 p.m. on May 2 and searched Sanchez for tattoos. They took Sanchez out of the interview room, listening to Sanchez repeat his plea to call his mother.

They denied the request.

Then they questioned Sanchez anew at 5 p.m. on May 3.

Defendant Recants

Sanchez told the detectives that he had lied on May 2, that he and the others in the car never fired a gun. A member of the Spanish Gangster Disciples he knew only as “Bone Crusher” had threatened Sanchez and Leslie.

Closing Arguements

In closing argument, the prosecutor said that Sanchez’s tears during the interrogation showed that he suffered from a burden of guilt, and “you can see how that burden is in fact lifted from him after he admits being the person who shot Rafael.”

Defense counsel argued that detectives fed an account to Flores and Sanchez and pressured them into assenting to that account.

The detectives used lies about the evidence and emphasis on the words “accident” and “mistake” to induce acceptance of the false accounts. In the prosecution’s rebuttal, the jury heard the following:

“[PROSECUTOR]: It’s bad enough to insult the integrity of the law enforcement people that were involved in this case. It’s bad enough to put dishonor upon their reputations, the people that are out there saving our lives and our communities.

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

*** [PROSECUTOR]: *** I’ve never seen anybody murdered by a cupcake before. He wants his Mommy. He is nothing but a sniveling, cowardly killer. That’s what he is. What were you doing out there all day, Jesus?

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

[PROSECUTOR]: [The witness] knew because when he was asked why were you being chased, what did he say? We were being chased by the Sureños because they thought we had shot someone, and that’s why they were being chased—

MS. KOEHLER: Objection, Judge.

THE COURT: What’s your objection?

MS. KOEHLER: It was the subject of a motion—

THE COURT: Overruled.”

The Verdict

The jurors deliberated for five hours before sending a note saying, “We are split.” The judge ordered them to continue deliberating.

Five hours later, the jury returned a verdict finding Sanchez guilty of the murder of the victim but not guilty of attempting to murder.

The judge sentenced Sanchez to 45 years in prison: 20 years for murder, plus 25 years for use of a firearm. 

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Expungement And Sealing In Illinois With Paul Meyers

May 16, 2018 32:13

Description:

Episode 487 (Duration 32:12) Illinois has one of the broadest expungement and sealing laws in the country. Listen in to this 30 minute interview with an Illinois attorney who explains the issues in terms easy to understand and follow.

Paul Meyers On Expungement and Sealing

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In This Episode...

"With a stroke of the pen from Governor Rauner we became the most liberal state, I would say perhaps a better word 'permissive' state, on sealing, specifically, in the entire country ." -- Paul Meyers.

Attorney Paul Meyers

Paul Meyers graduated from the University of Tulsa law school in 2011, where he was on law review and interned for the Tulsa County Public Defender’s Office.

After passing the bar, Paul worked for the Kane County Public Defender’s office for 5 years before joining Robert Callahan & Associates in 2017.

How To Contact Paul Meyers Robert J Callahan & Associates
2500 South Drake Avenue
Chicago, IL 60623 (312) 322-9000 meyers999@gmail.com Links & Resources 20 ILCS 2630 et seq. Illinois Criminal Identification Act 20 ILCS 2630/5.2 et seq. Expungement and Sealing Illinois Supreme Court Sample Forms Illinois State Appellate Defender Resources Combined Standardized Forms List of Crimes You Can't Seal - 20 ILCS 2630/5.2(a)(3) Exclusions Factors Court Should Consider - 20 ILCS 2630/5.2(d)(7) Disclaimer The "You Can Only File Once" Rule - 20 ILCS 2630/5.2(c)(4) Other Stuff "Can't Miss" Moments:

✓ Bullet 1 (Go to 1:18)

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See Also

You may also want to check out...

Episode 026 People v. Laguna, 2014 IL APP (2d) 131145 (August) (No Right to Expungement in Illinois After a Pardon)

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When Police Investigate The Police

Apr 25, 2018 11:39

Description:

Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns. What are they?

When police arrest the police

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In This Episode...

We discuss the following case:

Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967).

Gist of the Case

The Supreme Court of New Jersey caught wind of some ticket fixing going in their court system.

They formed an investigation with the Attorney General.  This investigation interrogated other officers.

Coerced Officers

The officers under investigation were warned by the Attorney General

(1) that anything he said might be used against him in any state criminal proceeding;
(2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but
(3) that if he refused to answer he would be subject to removal from office. Appellants answered the questions.

No immunity was granted.

When the officer's statements were used against them in the subsequent prosecution they claimed the statements were coerced out of them. Their statements were coerced by reason of the fact that, if they refused to answer, they could lose their positions with the police department.   

SCOTUS Said

The Supreme Court of the United States said that the officers were not really given a choice to talk to investigators.

The fear of being discharged under for refusal to answer on the one hand and the fear of self-incrimination on the other was "a choice between the rock and the whirlpool” which made the statements products of coercion in violation of the Fourteenth Amendment.

The choice between self-incrimination or job forfeiture is no choice at all.

The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice is likely to exert such pressure upon an individual as to disable him from making a free and rational choice.

Ain't Police Work Just Like Any Other Job?

The court noted that ordinary citizens don't have constitution rights to their jobs.

To a certain degree everyone accepts employment with restrictions. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract.

The servant cannot complain, as he takes the employment on the terms which are offered him. Similarly, police officers don't have a constitutional right to be police officers.

This may be true, but...

The Issue Here

The issue here is whether the State, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee.

What's different here is that the employer is the police department.

The police can't force an incriminating statement from a fellow officer no more than they can coerce a statement from another citizen with a claim that they will see to it that they get fired if they don't cooperate with an investigation.

Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.

Holding

We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

Convictions of these officers were reversed.

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4 SORA (Sex Offender Registration Act) Cases To Know About

Apr 11, 2018 26:14

Description:

Episode 475 (Duration 26:13) Here are 4 cases on the Illinois Sex Offender Registration Act (SORA) You should know something about. 


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  In This Episode...

We discuss the following cases:

In re T.J.D., 2017 IL App (5th) 170133 (November) In re B.C., 2018 IL App (3d) 170025 (February) People v. Tetter, 2018 IL App (3d) 150243 (January) People v. Zetterlund, 2018 IL App (3d) 150435 (March) People v. Rodriguez, 2018 IL App (1st) 151938 (February) In re T.J.D.

In re T.J.D., 2017 IL App (5th) 170133 (November)

Petitioner has to prove he poses “no risk” to reoffend even though evaluators never go beyond a “low risk” assessment. Juvenile Sex Probation

The court entered an adjudication and disposition order on April 14, 2011, which required respondent to register as a juvenile sex offender under the Act. 730 ILCS 150/3-5.

Respondent was also placed on probation for five years and home electronic monitoring for 12 months. Respondent registered as a juvenile sex offender. Respondent was discharged from probation and subsequently filed filed a petition to terminate his sexual offender registration pursuant to section 3-5(d) of the Act. 730 ILCS 150/3-5(d).

Minor May Terminate Registration

Under this section of the Act, a court may terminate the registration of an adjudicated juvenile delinquent if he or she shows, by a preponderance of the evidence, that he or she “poses no risk to the community.” 730 ILCS 150/3-5(d).

In support of respondent’s contention that he posed no risk to the community, respondent asserted that he had completed a current risk assessment, which

recommends he be removed from registration he successfully completed individual sex offender treatment his sexual offender history and recommendations from counselors indicate he is a low risk and requires no supervision or restrictions he has resided and attended school in the community without any incidents; and the continued requirement of registration presents an undue burden. Sex Offender Registration Act Section 3-5(d)

The relevant section of SORA provides:

“(d) The court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e). ***

(e) To determine whether a registrant poses a risk to the community as required by subsection (d), the court shall consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act [(225 ILCS 109/1 et seq. (West 2014))]; 
(2) the sex offender history of the adjudicated juvenile delinquent; 
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation; 
(4) the age of the adjudicated juvenile delinquent at the time of the offense; 
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history; 
(6) victim impact statements; and 
(7) any other factors deemed relevant by the court.

(f) At the hearing set forth in subsections (c) and (d), a registrant shall be represented by counsel and may present a risk assessment conducted by an evaluator who is licensed under the Sex Offender Evaluation and Treatment Provider Act.”

730 ILCS 150/3-5(d), (e), (f) (West 2014).

Psychosexual Risk Assessment & Evaluation

Attached to respondent’s petition was a psychosexual risk assessment and evaluation prepared by Linda Stover, a licensed sex offender evaluator.

Based on her review of records, clinical interviews, written assessments, and stable and acute risk factors, Stover concluded that respondent should be considered a low risk to the community.

Stover opined that respondent had demonstrated he can live an offense-free life and should be given the opportunity to continue his life without having to register as a sex offender. Stover further stated that respondent had completed everything the court asked of him, he assumes full responsibility for his actions, and he “is very remorseful for all of it.” Stover strongly recommended that respondent be removed from the registration law.

The State’s Evaluator

The State’s own evaluator stated that respondent had participated in both residential and outpatient sex offense specific treatment and that he successfully completed the treatment with highly positive reports from his treatment providers. The evaluator opined that respondent had demonstrated a number of strengths in dynamic risk areas and had shown patterns of behavior associated with decreased risk for sexual offense recidivism. She found the risk of respondent’s recidivism to be very low.

Regarding registry removal requirements in Illinois, Adkerson opined:

“Illinois requires a finding that the individual pose no risk to the community to be appropriate for registry removal, which presumably would be a risk level equivalent to community members at large. A finding of no risk is not possible, as some risk for sexual offense exists even among the general population for whom no prior sexual offenses have been identified.”

In sum, the evaluator recommended that respondent be released from his sex offender registry requirements because there “is every reason to believe” respondent would not reoffend, and because remaining on the sex offender registry creates risk of destabilization in housing and employment which in turn undermines best functioning.

The Trial Judge

The court called the factual basis underlying the adjudication both “disturbing and disgusting” and observed that both of respondent’s victims were between two and four years old at the time the offenses were committed.

The court found the evidence clearly demonstrated respondent gained the trust of the victims and the victims’ parents, and after doing so, respondent repeatedly molested the children over a period of months until he “grew bored.” The court noted that respondent chose the minor victim, one of the victims, because “he could get away with it and she would be easy.”

The court further concluded that respondent’s testimony lacked credibility.

The court found there were inconsistencies regarding respondent’s testimony, which were not explained to the court’s satisfaction, and observed respondent’s manner and tone to be “well-rehearsed” and “less than forthright.

In its conclusion, the court stated, in relevant part:

“[T]he Court finds [respondent] has failed to prove by a preponderance of the evidence that he poses ‘no risk’ to the community. Both experts found him to be low risk. The Court is unwilling to give that statutory direction a lesser meaning. The Legislature chose to make the standard ‘no risk.’ Low risk is not the same as no risk. The Court finds by a preponderance of the evidence that [respondent] is a low risk to the community; however, that does not meet the standard set out in 730 ILCS 150 3/5. Based on the evidence presented, the Court cannot find the burden to prove he is no risk to the community has been met.”

Issue

Turning to the merits, respondent argues the “no risk” requirement under section 3-5(d) of the Act—which, if proven by a preponderance of the evidence, permits a court to terminate an individual’s sexual offender registration—creates an impossible burden to obtain and renders this statutory provision meaningless.

Respondent requests that this court reverse and remand this cause with directions regarding the reasonableness of “no risk” under section 3-5(d).

Analysis

In support of his argument, respondent asserts that experts in the field of sex offender treatment will never make a formal finding lower than “low risk.

Respondent contends it is irrational that a court must make a finding of “no risk” in order to terminate sexual offender registration, but must consider a risk assessment performed by a licensed evaluator pursuant to section 3-5(e) of the Act which will not label a petition lower than “low risk.” Respondent further argues the legislative history indicates the court was intended to have discretion in determining whether to grant a petition to terminate sexual offender registration, and the plain language of the statute has stripped the court of that discretion.

After careful consideration, we do not find the statutory language at issue to be ambiguous. Section 3-5(d) clearly requires the court to make a finding, by a preponderance of the evidence, that the applicant poses “no risk” to the community. 730 ILCS 150/3-5(d). Here, we find nothing which suggests “no risk” within the meaning of section 3-5(d) is ambiguous or absurd.

Further, contrary to respondent’s assertion, we do not find this provision creates an impossible burden for respondent to obtain. To obtain relief, the legislature adopted a preponderance of the evidence as the burden of proof. Our supreme court has defined a preponderance of the evidence as that evidence which renders a fact more likely than not. After careful consideration, we find this burden is not unreasonable or impossible to satisfy. If the statute employed an “impossible burden” as respondent suggests, it would be a much heavier burden of proof such as beyond a reasonable doubt or clear and convincing evidence.

By adopting a preponderance of the evidence as the burden of proof, the legislature afforded petitioners the opportunity to prove they pose “no risk” to the community.

Holding

In this case, the court, after considering the factors outlined in section 3-5(e) of the Act (which included the evaluations concluding respondent was a low risk to the community), simply determined respondent failed to meet that burden. It is clear that the burden of proof adopted by the legislature is not unreasonable or unattainable.

In sum, we do not find that the “no risk” requirement under section 3-5(d) creates an impossible burden. Although we agree the statute creates a very high burden on respondent, a showing of “no risk,” while under limited circumstances, is not unreasonable or impossible to obtain. It was possible for respondent to prove he posed no risk to the community by a preponderance of the evidence.

We further note that the offenses committed by respondent are a far cry from the “less serious sex offenses” section 3-5 is intended to protect. For these reasons, we reject respondent’s argument.

In light of the foregoing, we cannot say that the trial court’s decision denying respondent’s petition was against the manifest weight of the evidence. As a reviewing court, we will not reverse a trial court’s decision simply because we might have reached a different conclusion based on conflicting evidence. Here, although we may have weighed the evidence differently, we cannot say the court’s judgment was unreasonable, arbitrary, or not based on the evidence.

Legislative Act Required

Accordingly, we reject respondent’s argument. In sum, we conclude that section 3-5(d) of the Act clearly requires an individual to prove he poses “no risk” to the community by a preponderance of the evidence in order to permit a court to terminate his or her sexual offender registration. This is not an impossible burden to obtain. However, considering that medical experts refuse to label an offender as “no risk” (the lowest recognized category by the treatment providers in this case was “low risk” or “lowest possible risk”), we encourage the legislature to reconsider that standard. We further conclude that the court’s decision denying respondent’s petition was not against the manifest weight of the evidence. For these reasons, we affirm the order of the circuit court of Williamson County, denying respondent’s petition to terminate his sexual offender registration.

In re B.C.

In re B.C., 2018 IL App (3d) 170025 (February)

The law does allow a petitioner to establish that it is “more probable than not” that he poses no risk to the community not withstanding an evaluation that says he poses a “low risk to the community.” Gist

The minor was 14 years old when he put his penis in the mouth and anus of two 8 year old boys. He was charged in juvenile court under aggravated criminal sexual abuse and was adjudicated.

Registration Required

He had a 10 year registration requirement and it later turned into a 20 year period.

Original Evaluation

The doctor who evaluated B.C. In her report, said B.C. appeared to be making positive strides in therapy, and he had improved his social skills. She noted that assessing B.C.’s risk of reoffense was “not an easy task” because recidivism rates for adolescent sex offenders were low compared to adult sex offenders and a 100% accurate empirical risk assessment did not exist.

Nevertheless, the doctor cited the following factors that may reduce B.C.’s likelihood of reoffense:

(1) B.C. had no history of juvenile delinquency before the adjudicated offense
(2) since B.C.’s adjudication, he has not had any new involvement with the justice system
(3) B.C. consistently engaged in and demonstrated progress in treatment
(4) B.C. admitted that he committed the offenses
(5) B.C.’s level of denial had decreased
(6) B.C.’s exposure to sexually explicit material had decreased
(7) B.C. did not have a history of being victimized
(8) B.C. did not have a deviant sexual arousal pattern
(9) B.C.’s family was willing to engage in treatment
(10) B.C. was involved in a functional family system
(11) B.C. did not have a history of academic or behavioral problems
(12) B.C. had increased his involvement with peers his age and decreased his involvement with younger peers
(13) B.C. had increased parental and adult supervision
(14) B.C.’s empathy for the victims had increased but was still incomplete
(15) B.C. did not have a history of drug or alcohol use
(16) B.C.’s social skills were increasing and 
(17) B.C. was not suffering from a significant emotional or psychological problem.

The doctor also cited four factors that may increase B.C.’s likelihood of reoffense:

(1) B.C. and his parents continued to display cognitive distortions related to the offense
(2) B.C. and his family did not have sufficient knowledge of the environmental, interpersonal, and family factors that may have contributed to the abuse 
(3) B.C. and his family have yet to develop an appropriate level of victim empathy and 
(4) B.C. and his family failed to completely understand the exploitative nature of the offenses.

Finishes Probation

Five years he was discharged from probation.

…11 Years Later

11 years after that he petitioned for termination of his sex offender registration requirement. 730 ILCS 150/3-5(c).

The petition alleged that

(1) B.C. became statutorily eligible to petition for termination on September 1, 2005
(2) B.C. had successfully completed a sex offender treatment program, and 
(3) according to a different licensed professional evaluator, B.C. was a “low risk to re-offend,” had a plan for accountability, and was aware of his triggers.

What He Was Up To…

At the hearing on the petition, B.C. testified that he committed the charged offenses when he was 14 years old.

Since his convictions, B.C. had graduated from high school and attended 1½ years of community college. After high school, B.C. worked full time at several Taco Bell locations. B.C. had also worked as a manager at a Buffalo Wild Wings restaurant and was then the general manager of the Taco Bell he worked at.

He had no new arrests, no violations of probation and had met all his registration requirements.

Victim Impact Statement

The State called, the mother of the minor victim, to read a victim impact statement.

In her statement, she detailed continuing anxiety and emotional distress felt by the victim caused by B.C.’s actions. The mother acknowledged that people can change, but advocated that B.C. remain on the sex offender registry for as long as possible because of the harm B.C. had caused.

Counseling After Probation & 

Further after his probation ended he sought additional counseling to get a handle on his issues and to ensure he didn’t re offend.

He successfully completed a sex offender treatment program after his probation had ended and had a low risk to reoffend. The evaluator explained that the sex offender treatment program consisted of three phases:

(1) offender check-ins and learning accountability for the deviant behavior
(2) accountability, understanding the cognitive errors that led to the offender’s poor choices, and developing empathy and understanding the impact of the offender’s actions on the victim and society; and 
(3) managing and understanding the offender’s triggers and high risk areas.

These three phases included 18 assignments and took four years to complete.

At the end of the program, the evaluators determined whether the offender had changed his erroneous thinking or had merely moved through the steps.

The New Evaluation

The evaluator explained the biggest factor in preparing the assessment was determining whether B.C. understood his actions were wrong and how to prevent the behavior in the future. She said the following factors reflected favorably on B.C.’s risk assessment:

(1) B.C. had voluntarily undertaken the sex offender treatment program
(2) B.C. had a history of continuous employment
(3) B.C. had a positive family support network and 
(4) B.C.’s family understood the program was not about “curing” B.C., but educating and training B.C. to understand the thinking errors that led to the offenses.

Munson ultimately determined that B.C. had a “low risk to re-offend.”

You Only Get A “Low Risk”

The evaluator said that neither she nor any of the other evaluator had ever issued a “no risk to offend” opinion. The only options were “low risk, medium risk, or high risk.”

On cross-examination, she explained that the sex offender treatment program teaches offenders “to accept that there is always a possibility of re-offense. That’s a part of why we build and instill in them an understanding of what their triggers are and ways of making sure that they don’t get themselves in situations. Many of our assignments are based on looking at their cycle of behavior and then planning for exits of how to get out of that cycle. So it’s a part of our successful treatment that they understand you cannot ever say, ‘I will never re-offend.’ You have to understand that the possibility is there, but the risk factor determines how probable that is.”

The evaluator was not saying that B.C. had “no risk” to reoffend because she did not “know how the standard can have it as zero risk since that goes against all of the sex-offender-based training that [she has] had; but [she thought] it was written by lawyers, not practitioners.”

On redirect examination, she said that, based on her experience, B.C. had the “lowest risk possible.” B.C. also had fully accepted responsibility for his offenses, understood his triggers, and did not have a strong attraction to children. She reiterated “[t]here is no cure. There is only education.”

Trial Judge Denies The Motion

The trial judge denied the motion saying:

“But that’s not what the statute says, and I cannot rewrite the statute. The statute says ‘no risk.’ I don’t get to make those judgment calls. That is not my place as a trial judge. My place is to follow the statute. The word is ‘no risk.’ And, therefore, the petition—despite all of the compelling evidence with regards to the minimal nature of the risk, the statute has to be followed. And, therefore, I have to deny the petition.”

Issue

B.C. argues the court improperly interpreted section 3-5 of the Sex Offender Registration Act (Act) (730 ILCS 150/3-5 (West 2016)) and ceded responsibility for making a judgment to persons other than the court.

Specifically, B.C. contends that the trial court effectively shifted the judicial decision-making authority to the evaluator, who found that B.C. posed a “low risk” instead of the statutorily required “no risk.” Additionally, B.C. submits that the court’s interpretation nullifies section 3-5 because, according to the evaluator, all assessments will result in, at best, a “low risk” determination. B.C.’s argument is derived from the trial court’s interpretation of subsection 3-5(d) of the Act.

The Statute

This subsection provides that once a juvenile sex offender files a subsection 3-5(c) petition,

“[t]he court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e).”

730 ILCS 150/3-5(d).

The language of subsection 3-5(d), stating that the court must find the registrant poses “no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e),” is clear and unambiguous. T.J.D., 2017 IL App (5th) 170133, ¶ 23.

When deciding whether B.C. satisfied his burden of proof, the court was required to consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act; 
(2) the sex offender history of the adjudicated juvenile delinquent; 
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation; 
(4) the age of the adjudicated juvenile delinquent at the time of the offense; 
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history; 
(6) victim impact statements; and
(7) any other factors deemed relevant by the court.

730 ILCS 150/3-5(e) (West 2016). 

High Standard

The legal “no risk” standard of subsection 3-5(d) is necessarily high because this onerous burden strikes a balance between the intent of the Act to protect the public (see People v. Bonner, 356 Ill. App. 3d 386, 388-89 (2005) (Act is intended to protect the public rather than punish sex offenders)) and the statutory ability afforded only to juvenile offenders to terminate registration (see Rufus T., 409 Ill. App. 3d at 975 (section 3-5 of the Act is “intended to protect the rights of juvenile delinquents, who have a greater likelihood of rehabilitation, by allowing them the opportunity to petition the court to remove them from the sex offender registry”)).

It must be recognized that the legislature tempered the high standard of “no risk” by incorporating a preponderance of the evidence burden of proof upon the petitioner. 730 ILCS 150/3-5(d) (West 2016). This statutory burden does not require proof beyond a reasonable doubt and can be satisfied with sufficient evidence to show that a fact is “more likely than not.” T.J.D., 2017 IL App (5th) 170133, ¶ 26.

Analysis

We agree that if the burden of proof was beyond a reasonable doubt, the burden, combined with the “no risk” standard would effectively nullify section 3-5, as it is nearly impossible for a sex offender to show no risk of reoffending. Therefore, the adoption of the preponderance of the evidence burden of proof permitted B.C. to show that he posed “no risk to the community” even though evidence of some of the factors did not weigh in his favor.

The preponderance of the evidence burden of proof requires only that B.C. show that it is “more likely than not” (T.J.D., 2017 IL App (5th) 170133, ¶ 26) that he “poses no risk to the community” (730 ILCS 150/3-5(d) (West 2016)).

This standard is less exacting than the criminal beyond a reasonable doubt standard as it does not require B.C. to prove his case beyond all doubt, but that it is “more probable than not” that he poses no risk to the community. The evaluator's testimony establishes that “low risk” is the label applied to the most successfully rehabilitated sex offender. Her explanation appears to make a “no risk” assessment, as required by subsection 3-5(d), an unattainable goal.

We note that the legal standard of “no risk,” when measured by a preponderance of the evidence, may be satisfied in spite of a “low risk” assessment by a nonjudicial professional evaluating defendant in a clinical, rather than legal, context.

Grant The Petition

Here, expert testimony indicated that B.C. earned the highest rating a clinician could provide. Thus, based on the unique facts of this case, we conclude that B.C.’s “low risk” assessment weighs in favor of granting the petition. The only factor that went against granting the petition was the severity of the offense. And the victim impact panel went against him but it’s value was undermined.

The history of his evaluations was this:

In July 2000, the first evaluation stated B.C. had a low to moderate risk to commit future sex offenses. Relevant to B.C.’s mental and social history, the moderate risk factors cited included B.C.’s failure to understand the exploitive nature of the offenses and B.C.’s negative self-esteem.

The later report, about a year and a half later, indicated B.C. had worked to remedy at least some of these issues as he had consistently engaged in and progressed in treatment, admitted that he committed the offenses, decreased his level of denial, and expressed some empathy for the victims.

The expert testimony at the hearing on B.C.’s petition to terminate registration established that B.C. had resolved these issues after he completed the sex offender treatment program. In particular, the evaluator noted that B.C. had accepted responsibility for the offenses and understood his triggers.

Holding

Based on her evaluation of B.C., the evaluator opined B.C. had the lowest risk possible. Viewed together, this evidence showed that B.C. made substantial progress in correcting the mental issues that existed at the time of the offense. Further, B.C.’s testimony of his employment history, academic history, and current career established a positive educational and social history following the offenses.

Therefore, this factor weighs in favor of granting the petition. From our review of the record, the risk assessment, evidence of rehabilitation, age at the time of the offense, and B.C.’s mental, physical, emotional, and social history factors each weigh firmly in favor of granting the petition.

The evidence supporting the denial of the petition is limited to B.C.’s sex offender history, which consists only of two, albeit very serious, offenses and the victim impact statement. Therefore, we conclude B.C. met the burden of showing, by a preponderance of the evidence, that he poses “no risk” to the community. 730 ILCS 150/3-5(d), (e)(3) (West 2016).

We conclude that the court’s denial of B.C.’s petition to terminate registration was contrary to the manifest weight of the evidence.  The judgment of the circuit court of Kankakee County is reversed and remanded with directions for the court to grant B.C.’s petition to terminate sex offender registration.

Reversed and remanded with directions.

People v. Tetter

People v. Tetter, 2018 IL App (3d) 150243 (January)

SORA declared unconstiututional as applied to this defendant. Gist

Defendant, age 21 at the time, began a relationship with a minor who represented herself to be 18.

A jury found that defendant continued this relationship after learning she was 16 and convicted him of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)).

Issue

Defendant also raises, for the first time on appeal, a constitutional challenge claiming the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012)), residence and presence restrictions within 500 feet of school zones or 100 feet of school bus stops (720 ILCS 5/11-9.3 (West 2012)), residence and presence restrictions within 500 feet of a public park (720 ILCS 5/11-9.4-1 (West 2012)), mandatory annual driver’s license renewal (730 ILCS 5/5-5-3(o) (West 2012)), and prohibiting defendant from petitioning to change his name (735 ILCS 5/21­ 101 (West 2012)) impose disproportionate punishment as applied to him.

We refer to these statutes collectively as “sex offender statutes” herein.

SORA And It’s Progeny

Our legislature subsequently passed numerous amendments imposing additional requirements and restrictions upon sex offenders.

Most importantly, it imposed specific restrictions on where sex offenders may be present or live. See 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012). Sex offenders cannot have jobs where they work, at any time for any reason, within 500 feet of a school or public park or within 100 feet of a school bus stop. SORA also effectively bars offenders from working any job requiring extensive travel; sex offenders must notify, in person, both Illinois law enforcement and the destination’s law enforcement when they are away from home for three or more days. 730 ILCS 150/3(a) (West 2012).

The amendments since People v. Malchow, 193 Ill. 2d 413, 424 (2000) “directly restrict where [a sex offender] can live, work, and even move about his community.” People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 51.

Thus, we are faced with very different and more restrictive statutes than those addressed in Malchow or Smith, 538 U.S. at 98 (Alaska SORA constitutional).

After Probation

After completing sex offender probation, offenders are subject to the sex offender statutes for either 10 years or life—defendant’s conviction subjects him to lifetime registration. Under the sex offender statutes, off-parole sex offenders must register with the DOC, inform the DOC of certain life events (such as buying or using a new car, growing a beard, moving, or taking a vacation), consent to having Internet usage monitored, and most importantly, not live or be present near school zones, school bus stops, or public parks.

Parole Conditions

Because of the restrictions on movement the sex offender statutes are now akin to probation or supervised release. Probation and other forms of supervised release are considered punishment. Sex offenders, like defendant, are subject to dozens of additional parole conditions. See 730 ILCS 5/3-3-7(a)(7.5)-(7.13), (b)(7.5)-(7.6), (b-1) (West 2014). These conditions include sex offender treatment, not living in the same residential unit (including apartments or condominiums) with other known sex offenders, wearing an electronic monitoring device, not communicating with or contacting people on the Internet whom the offender believes to be under 18, consenting to searches of all devices with Internet access, not possessing prescription medications for erectile dysfunction, not “scrubbing” or erasing data on any computer device, residing only at an approved location, obtaining approval prior to accepting employment or pursuing education, not being employed or participating in any volunteer activity involving contact with children, refraining from entering designated geographic areas without approval, neither possessing nor having access to pornography or sexually stimulating material, not patronizing any adult entertainment establishment or telephone hotline, not residing near or being present in places where minors may congregate without advance approval, taking an annual polygraph exam, maintaining a travel log, and other restrictions.

After Parole

Off-parole sex offenders are more restricted in many ways than non-sex-offender parolees. While non-sex-offender parolees are monitored and prohibited from committing crimes, off-parole sex offenders may not reside or be present near places where the legislature has deemed them more likely to recidivate. Sex offender statutes restrict where defendant may live, work, or be present, in addition to the numerous obstacles imposed by the registration requirements. These requirements and restrictions, collectively, constitute an affirmative disability and restraint—defendant is restricted in most aspects of his daily life. Specifically, “safe zones” surrounding schools, school bus stops, and public parks, significantly restrict defendant’s lawful movement within the community. These zones restrict where he may live, drive, work, visit, or attend any social function for life. Although not to the same degree as prison, the sex offender statutes’ restrictions affirmatively disable and restrain offenders such as defendant. Therefore, this factor suggests that the sex offender statutes constitute punishment.

Punishment v. Civil Sanctions

However, since the legislature enacted sex offender statutes that restrict a convicted sex offender’s presence, residence, and liberty to move about society, the court has not addressed whether the sex offender statutes’ punitive effects negate the legislature’s intent to deem the laws civil.

For the reasons stated below, we find that they do. Our sex offender statutes satisfy the traditional definition of punishment.

What Is Punishment?

Citing published legal philosophy, the Snyder court defined “punishment” as involving pain or unpleasant consequences following from an offense against the law, applying to the offender, being intentionally administered by people other than the offender, and being imposed and administered by an authority constituted by a legal system against which the offense was committed.

Our sex offender statutes, like parole or MSR, satisfy this definition.

Analysis

We find that this factor also suggests that the sex offender statutes constitute punishment.

The trial court referred defendant to a licensed clinical psychologist for his evaluation. Defendant scored in the zero percentile on the child molestation, drug abuse, and alcoholism scales. In other words, a clinical psychologist chosen by the court, not defendant, concluded that he poses no greater risk than any other person to commit child sex crimes or those involving drug or alcohol abuse.

Nonetheless, the sex offender statutes require defendant to register for life and not set foot near school zones or public parks where children frequently congregate. Defendant is simply not the person at whom the sex offender statutes’ purposes are aimed. Its statutes are not tailored to regulate only dangerous offenders, those likely to recidivate, or those with little or no potential for rehabilitation; therefore, offenders like defendant must endure the statutes’ restrictions without society reaping any benefit.

These statutes go well beyond the dissemination of accurate, already-public information. We agree with the trial court’s assessment of defendant’s sentence:

“I can only say his life will never be the same. He will go through life now as a predator. He will be labeled a predator in every way. He—it will be very difficult to get a job. He’ll not be able to have a cell phone, use those apps that he uses or be on the Internet. He won’t be able to live where he wants to live. He won’t be able to associate with who he wants to be [sic]. His life will—will never be the same and—and in effect that is great punishment.”

If the sex offender statutes’ application were not irrevocable, our analysis might be different.

Disproportionate Sentence

We now address whether defendant’s punishment is unconstitutionally disproportionate to his crime.

Article I, section 11 of the Illinois Constitution provides,

“[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11.

“A proportionality challenge contends that the penalty in question was not determined according to the seriousness of the offense ***.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Our proportionate penalties clause coincides with the eighth amendment. The eighth amendment allows defendants to challenge sentences as disproportionate “given all the circumstances in a particular case.” Graham, 560 U.S. at 59.

In doing so, courts must be mindful that the eighth amendment contains a narrow proportionality principle, that does not require strict proportionality between crime and sentence but rather forbids only extreme sentences that are grossly disproportionate to the crime.

Holding

We find that the sex offender statutes constitute punishment as contemplated by the eighth amendment and the Illinois Constitution’s disproportionate penalties clause. Given defendant’s background and his virtually zero risk to recidivate, we hold that his lifetime subjection to the sex offender statutes is grossly disproportionate to his crime. As applied to him, lifetime subjection to the sex offender statutes’ registration requirements and restrictions violates the Illinois Constitution’s proportional penalties clause and the United States Constitution’s eighth amendment. For the foregoing reasons, we affirm defendant’s conviction, jail sentence, and probation term. We vacate defendant’s subjection to the sex offender statutes’ registration requirements and restrictions.

People v. Zetterlund

People v. Zetterlund, 2018 IL App (3d) 150435 (March).

Another defendant says SORA is unconstitutional; he loses. Facts

Defendant was present at a party with the victim and several other individuals. During the course of the night, the victim became severely intoxicated and lost consciousness. While the victim was unconscious, defendant removed the victim’s clothing and performed vaginal intercourse on the victim.

Defendant’s friend, was present and recorded the assault on his phone.

Sentence

The court sentenced defendant to six years’ imprisonment and an indeterminate term of three years to life of mandatory supervised release (MSR). Because of defendant’s conviction, he is subject to the restrictions and obligations set forth in the SORA statutory scheme for the remainder of his life.

Issue

Defendant challenges the constitutionality of the SORA statutory scheme, which he is now subject to because of his present conviction. Defendant makes two arguments to support his contention:

(1) the SORA statutory scheme violates the due process clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2) and
(2) the SORA statutory scheme violates the proportionate penalties guarantees of the United States and Illinois Constitutions (U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11).

Case Law Says Constitutional

Before analyzing each constitutional argument, we note that our supreme court has upheld prior versions of the SORA statutory scheme against similar constitutional challenges. See People v. Cornelius, 213 Ill. 2d 178 (2004); People v. Malchow, 193 Ill. 2d 413 (2000).

Nevertheless, defendant contends that the SORA statutory scheme is different than the prior versions determined to be constitutional because recent additions have made the SORA statutory scheme so onerous that it no longer satisfies constitutional protections.

Holding

Upon review, we find the SORA statutory scheme satisfies substantive and procedural due process requirements. Therefore, we hold the SORA statutory scheme does not violate defendant’s due process rights under the United States and Illinois Constitutions.

See also In re A.C., 2016 IL App (1st) 153047, ¶¶ 35-79, and People v. Pollard, 2016 IL App (5th) 130514, ¶ 23, the court found that the current version of the SORA statutory scheme did not violate an individual’s due process rights (substantive or procedural).

We agree with the conclusions reached in A.C. and Pollard and adopt their reasoning. In defendant’s brief, he does not specifically state which basis he is relying upon in support of his argument. Consequently, we find defendant has forfeited any argument that the SORA statutory scheme is facially unconstitutional. Despite this, we consider the substance of defendant’s argument to be an as-applied challenge. We find the record is simply insufficient to determine whether imposing lifetime registration requirements is grossly disproportionate to defendant’s crime.

People v. Rodriguez

People v. Rodriguez, 2018 IL App (1st) 151938 (February)

Unfit defendant says SORA is unconstitutional as applied to him. Gist

Defendant was found not not guilty of aggravated criminal sexual assault on the basis of unfitness. He is nonetheless required to register under SORA.

Must Still Register

We held that pursuant to People v. Cardona, 2013 IL 114076, ¶ 25, “an individual found not not guilty of a sex offense, even on the basis of being found unfit, falls within the purview of SORA” and is required to register.

Issue

Defendant now appeals arguing that the SORA statutory scheme is unconstitutional both on its face and as applied to him, an unfit defendant allegedly incapable of understanding the registration requirements. Defendant still claims he does not understand his requirements under SORA.

The sole issue on appeal is the constitutionality of subjecting unfit defendants found not not guilty of sexual assault to SORA’s “statutory scheme,” which, according to Rodriguez, encompasses the duty to register (730 ILCS 150/3), the penalty for noncompliance with the registration requirements and the failure to register (id. §§ 7, 10), the limitations on a sex offender’s residence and presence in certain locations (720 ILCS 5/11-9.3, 11-9.4-1), the requirement that a sex offender must renew his driver’s license yearly (730 ILCS 5/5­), and the prohibition on name changes for sex offenders (735 ILCS 5/21-101).

Analysis

We must first determine whether the SORA statutory scheme constitutes “punishment” at all. Our supreme court has answered that question in the negative on several occasions, most recently in 2013. Cardona, 2013 IL 114076, ¶ 24; see also People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 203 (2009); People v. Malchow, 193 Ill. 2d 413, 424 (2000).

Rodriguez acknowledges these holdings, but maintains that they are outdated, as the registration requirements and limitations imposed on sex offenders have become more onerous since these cases were decided. Specifically, today’s SORA

(1) increases the number of agencies with which a sex offender must register to include not only police departments in the county where the offender resides, but also in the county where he works or attends school (730 ILCS 150/3(a), (d))
(2) increases the amount of information a sex offender must provide when registering to include a photograph, telephone number, place of employment, employer’s telephone number, school attended, information about his qualifying offense, information about identifying marks on his body, license plate numbers for vehicles registered in his name, and all e-mail addresses, Internet identities, and Internet sites he maintains (id. § 3(a));
(3) provides less time to report changes in this information (from 10 days to 3 days) (compare id. § 3(b), with 730 ILCS 150/3(b));
(4) increases how often a sex offender must register and how often he must report in person (730 ILCS 150/6);
(5) increases the initial and annual registration fees (id. § 3(c)(6));
(6) imposes harsher penalties for noncompliance with registration requirements (id. § 10); and
(7) imposes greater restrictions on where a sex offender can live or be present (720 ILCS 5/11-9.3, 11-9.4-1).

What Is Punishment?

Even when the legislature intends to enact a civil regulatory scheme, the law may nevertheless constitute punishment if “the clearest proof” shows that it is punitive in purpose or effect.

When determining whether an ostensibly civil statute has a punitive effect, Illinois courts have applied the seven factor test first set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), which considers whether

(1) the sanction involves an affirmative disability or restraint,
(2) the sanction has historically been regarded as punishment,
(3) the sanction is applicable only upon a finding of scienter,
(4) operation of the sanction promotes retribution and deterrence,
(5) the behavior to which the sanction applies is already a crime,
(6) an alternative purpose to which the sanction may rationally be connected is assignable to it, and
(7) the sanction appears excessive in relation to the alternative purpose assigned.

See Malchow, 193 Ill. 2d at 421. We previously applied the Mendoza-Martinez factors to the 2013 SORA in Fredericks, 2014 IL App (1st) 122122, ¶ 58, and A.C., 2016 IL App (1st) 153047, ¶¶ 77-78, and determined that the changes to SORA since Malchow did not render the Act punitive.

We reach the same conclusion today.

Holding

We conclude that while the SORA statutory scheme has become more onerous since 1998, it remains nonpunitive in effect under Mendoza-Martinez.

Here, despite being in certain ways under- or overinclusive, the SORA statutory scheme is rationally related to protecting the public from sex offenders, which is a legitimate state interest. Thus, although the scheme may be imperfect, it is rationally related to the legitimate state interest of protecting the public from sex offenders and not unconstitutional on its face.

Rodriguez’s argument that the statutory scheme is unconstitutional as applied to him fares no better.

But He Aint Right...

Rodriguez maintains that his “cognitive and physical defects” “make reoffending next to impossible” and also make him unable to comprehend and comply with the SORA statutory scheme. But Rodriguez suffered from the same cognitive defects at the time he was charged with the offense that led to this proceeding; he has not alleged any new defects that would prevent him from committing a similar offense in the future.

And we rejected Rodriguez’s contention that he was incapable of understanding or complying with the registration requirements in our earlier decision. He had some level of cognitive functioning when he committed the crime. The evidence also reveals that Rodriguez had worked in a shop where his responsibilities included sweeping, putting on gloves, and gathering scrap metal and brake lining and putting them in a truck.

Rodriguez was also responsible for his own personal hygiene, had the ability to clean, do laundry, pay bills, and received a high school degree from a school that specializes in teaching individuals with cognitive deficits. Rodriguez was capable of complying with the registration requirements, and we decline to find otherwise today.

For these reasons, we affirm the constitutionality of the SORA statutory scheme both on its face and as applied to Rodriguez.

See Also Episode 321 – People v. Pearse – SORA is One Big Bloody Mess Says Illinois Supreme Court Episode 322 – People v. Gomez – State Failed To Prove Defendant Was Living In The City – Failure To Register Reversed Episode 386 – Packingham v. North Carolina – North Carolina Law Forbidden Sex Offenders From Going Online Stricken Down Episode 406 – People v. Jones – In A SORA Prosecution The Duty To Register Must Be Proven By The State Episode 407 – In re B.G. – Right To Petition To Terminate Obligation To Register As A Sex Offender Survives After A Subsequent Conviction Episode 408 – People v. McClenton – Judge Can’t Order State Police To Remove Person From Sex Offender Registry Episode 411 – People v. Jackson – SORA SORA No Time Is A Good Time For Goodbyes

Warrantless Blood Draws Coming To A Hospital Near You

Mar 28, 2018 26:45

Description:

Episode 469 (Duration 26:45) Here's a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws.

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In This Episode...

We discuss the following cases:

Birchfield v. North Dakota, 136 S. Ct. 1260 (2016) Missouri v. McNeely v. 569 U.S. 141 (2013) People v. Rennie, 2014 IL App (3d) 130014 (May) People v. Brooks, 2017 IL 121413 (November) People v. Sykes, 2017 IL App (1st) 150023 (December) People v. Eubanks, 2017 IL App (1st) 142837 (December) People v. Turner, 2018 IL App (1st) 170204 (February) People v. Hayes, 2018 IL App (5th) 140223 (February) Birchfield v. North Dakota, 136 S. Ct. 1260 (2016)

May the State criminalize the failure to comply with implied consent laws? Birchfield v. North Dakota

Gist

There were actually 3 consolidated cases each of them turning on whether or not the state could criminalize the failure to comply with implied consent laws. Two defendants were threatened with prosecution for failure to give blood; one defendant was charged for not blowing.

Warrantless Blood Draw

Thus, success for all three petitioners depended on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate.

If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.

Issue

SCOTUS, then had to determine if the searches demanded in these cases were consistent with the Fourth Amendment. This is so because when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.

If such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding.

Analysis

The court applied the search incident to arrest doctrine and noted it is a categorical rule.

Since breath tests do not “implicate significant privacy concerns”, (no more intrusion than blowing up a party balloon). Blood tests are a different matter. Yes,  Missouri v. McNeely distinguished between “easily disposable evidence” over “which the suspect has control” and evidence, like blood alcohol evidence, that is lost through a natural process “in a gradual and relatively predictable manner."

But McNeely concerned only one exception to the usual warrant requirement, the exception for exigent circumstances, that exception has always been understood to involve an evaluation of the particular facts of each case.

Here, by contrast, the search-incident-to-arrest exception is at play. Having assessed the effect of BAC tests on privacy interests and the need for such tests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.

What About Breath?

The impact of breath tests on privacy is slight, and the need for BAC testing is great.

Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Thus, the police generally will need a warrant to get blood from a driver.

The court said there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Holding

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, the court said that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.

People v. Brooks, 2017 IL 121413 (November)

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn. People v. Brooks

Gist

Police arrive to the scene of motorcycle accident. Defendant’s leg was broken because his foot was “almost upside down.” He wiped out on his motorbike. Defendant’s speech was slurred, his eyes were red, and he had an odor of alcohol emitting from his mouth when he spoke or yelled at the police. Defendant appeared agitated by the presence of law enforcement. When Webb asked defendant if he wanted to go to the hospital, defendant refused. Emergency medical services (EMS) personnel who were present at the scene told Webb defendant needed to go to the hospital and requested Webb’s assistance. Although defendant continued to decline medical services, Webb ordered defendant out of the Jeep. Defendant refused. Thereafter, Webb and another officer physically removed defendant from the Jeep, placed him on a gurney, and assisted EMS personnel in putting the gurney into the ambulance. Webb reiterated that it was EMS personnel who wanted defendant to get medical treatment and that he did not direct anyone to treat defendant. When asked. Webb testified that the ambulance stopped after traveling one or two blocks because defendant was trying to get out. EMS personnel again asked the police to help in transporting defendant. Webb stated that he was concerned at this time for the safety of EMS personnel, defendant, and himself. Webb placed defendant on the gurney, handcuffed him, and rode in the ambulance the rest of the way to the hospital. Webb then assisted EMS personnel in taking defendant into the emergency room. At the hospital, Webb read the statutory “Warning to Motorists” to defendant and asked him to consent to blood or breath testing. Defendant refused. At that point, Webb issued defendant a citation for DUI. Webb stated he did not take a sample of defendant’s blood nor did he direct anyone at the hospital to do so. Defendant briefly stated that, at the hospital, he never consented to have his blood drawn. Every time he was asked to have his blood drawn, he refused. Medical staff set his leg, which was broken. There is no dispute that a blood draw is a search within the meaning of the fourth amendment. However, the constitutional prohibition “against unreasonable searches and seizures does not apply to searches or seizures conducted by private individuals.” Where a person performs a search independently of the police, the search is considered a private one and, because state action is not present, the fourth amendment is not implicated. Where a search is conducted by a private individual, the search will be subject to constitutional guarantees when the individual conducting the search can be regarded as acting as an agent or instrument of the State. Participation by the police in and of itself, then, does not automatically invoke the application of the guarantees against unreasonable government intrusions safeguarded by the fourth and fourteenth amendments. There was no evidence that any police officer, sought or encouraged a blood draw or was even aware that one had been done. There is no question police forcibly seized defendant and helped transport him to the hospital. But defendant has never challenged the legality of the seizure. His challenge is only to the legality of a search, i.e., the blood draw that allegedly took place at St. Anthony’s. On this record, there is no evidence that a blood draw even took place, let alone that a hospital employee was acting as an instrumentality or agent of police when it was performed. This blood draw was a private search that did not implicate the fourth amendment.

People v. Sykes, 2017 IL App (1st) 150023 (December)

No state action, cops help hold her down while they force catheterize her. People v. Sykes

Ladina Sykes and her two children were leaving a beach in Evanston when the car struck a wall in the parking lot. Sykes contends her conviction should be vacated because the police violated her fourth amendment rights by holding her down while a nurse forcibly catheterized her without a warrant. The paramedics took Sykes to Evanston Hospital, where a triage nurse assessed her condition. She was stable and had no complaints but didn’t know the date or time so was deemed to have an altered mental state. Dr. Patel examined Sykes and ordered a CT scan and blood and urine tests to determine why Sykes was in an altered mental state and to decide on a proper course of treatment.  Officer Pratt was standing outside Sykes’s room when he heard her tell the nurse she had one alcoholic drink that evening. He went in her room and asked her if she had been drinking. She told Pratt she had not been drinking or taking any drugs. Pratt arrested her for driving under the influence, based on the odor of alcohol, slurred speech, bloodshot eyes, and overall demeanor. He did not ask hospital staff to obtain samples for him. Colleen Costello, the supervising nurse, asked Sykes for a urine sample. Sykes refused. Costello then decided to catheterize her. Costello said patients can refuse treatment unless, like Sykes, they have an altered mental state. When Costello began the catheter procedure, Sykes was combative, swinging her arms, kicking her legs, and moving her hips to resist catheterization. She also tried to get out of the bed. Costello called for assistance, and about nine people responded, including Evanston police officers Pratt and Magnas, who had been standing outside the room. Pratt and Magnas stood at the head of the bed and held Sykes down by her shoulders. Once Sykes was restrained, Costello extracted the urine with a catheter. The blood and urine tests were sent to the hospital lab. Sykes’s blood test showed she was well within the legal limit for alcohol, and her urine test was presumptively positive for cannabis and PCP. The fourth amendment applies only to government action. People v. Phillips, 215 Ill. 2d 554, 566 (2005). A search performed by a private person does not violate the fourth amendment. Additionally, the fourth amendment does not prohibit the government from using information discovered by a private search. Evanston Hospital staff did not perform the catheterization as the agents of the police. The test was ordered for medical purposes unrelated to any possible charges filed by the police. The fact that the officers were present, had placed Sykes under arrest, and were called on to assist did not turn the medical procedure into state action. They were in the room only because nurse Costello asked for their assistance restraining her so that she not injure herself or others. It was not unreasonable for the officers to come to the aid of a nurse seeking help with a patient who might harm herself and others. Moreover, the catheterization was not dependent on the officers’ participation. Thus, the trial court did not err in denying her motion to suppress the results of her urine test.

People v. Eubanks, 2017 IL App (1st) 142837 (December)

Defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done to draw it. People v. Eubanks

625 ILCS 5/11-501.2(c)(2) says in cases of death or personal injury a person shall submit to chemical testing. Birchfield v. North Dakota,136 S. Ct. 2160, 2174 (2016) has thrown the constitutionality of this section into question. In this case, Eubanks was arrested in connection with a hit-and-run accident that killed Maria and injured Jeremiah. The police had probable cause to arrest Eubanks for driving under the influence. At the police station, Eubanks refused to take a breathalyzer test or to submit to blood and urine tests. At 2:53 a.m., an officer took Eubanks to the hospital, telling him that he was required by law to submit to blood and urine tests. Eubanks was physically restrained by hospital security and a blood sample was taken at 4 a.m. The nurse then asked for urine, but Eubanks refused to urinate. The nurse threatened to catheterize him. As she approached him with a catheter, he urinated, and a sample was collected at 5:20 a.m. The samples were sent to the crime lab for analysis. Eubanks blood produced negative results for alcohol or any illegal substance, but his urine tested positive for cannabis, ecstasy, and cocaine metabolite. A warrantless search is per se unreasonable unless it is a search conducted pursuant to consent, a search incident to arrest, or a search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant. The State bears the burden of showing the existence of exigent circumstances. Eubanks does not dispute that the police had probable cause to believe that he was driving under the influence. Rather, he argues that there were no exigent circumstances that made it impractical to obtain a warrant. More specifically, he argues that (i) causing death or personal injury to another individual does not constitute a per se exigency and (ii) the State did not sustain its burden of showing exigent circumstances in his particular case. See Missouri v. McNeely, 569 U.S. 141 (2013) (natural dissipation of chemicals in the blood is not an exigent circumstance). Under McNeely, section 11-501.2(c)(2) is unconstitutional on its face, insofar as it permits compelled chemical testing without a warrant in all cases where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another. The facts of this case are illustrative since they do not reflect any exigency that would have prevented officers from obtaining a warrant. Nearly three hours passed before he was brought to the hospital. They could have used that time to get a warrant.

 

People v. Turner, 2018 IL App (1st) 170204 (February)

Good faith exception saves this warrantless blood draw. People v. Turner

Defendant’s pickup truck collided with a motorcycle carrying two persons. The trck and motorcycle met at an intersection. The driver of the motorcycle, James McFall, was killed; his wife, Kasey McFall, sustained serious injuries. The defendant was taken to the emergency room at St. James Hospital, where two blood samples were drawn from him. The first blood draw was taken pursuant to a physician’s order as a part of his emergency room treatment, at approximately 10:46 p.m. At the request of police, nurses performed a second blood draw for inclusion in a “DUI kit” shortly after midnight on July 3, 2011. Both tests indicated that the defendant’s blood alcohol content was above the legal limit. The defendant was charged with 10 counts of aggravated driving under the influence of alcohol and reckless homicide. Before trial, the defendant moved to suppress the results of the second blood test used in the DUI kit. At a hearing on the motion, the defendant testified that at the hospital, he was asked for a blood sample “around three to four times” by nurses, in the presence of police. He stated that he “continually asked the reason why they wanted to draw blood” but was given no reason. He claimed that he never consented to the DUI kit blood draw. The trial court proceeded to find that the second blood draw was admissible under section 11-501.2(c)(2) of the Code. Officer Murphy recalled that the defendant’s “speech was slurred and mumbled” when he spoke to hospital staff and that his eyes were “glassy and bloodshot.” Officer Murphy stated that he gave a nurse a DUI test kit containing vials for blood and urine samples. He observed a nurse perform a blood draw for the DUI kit, which he placed into the evidence locker at the police station. Defendant’s various blood tests came back as .142 and .0118. The expert calculated that the motorcycle’s speed at impact was approximately 25 miles per hour. The pickup truck’s speed was between 13 and 15 miles per hour at the time of the collision. “Black box” data recorder reflected that five seconds prior to the crash, the truck’s speed was approximately 10 miles per hour. The recorder indicated that the truck’s brakes were applied five seconds before the impact. The trial court sentenced the defendant to two concurrent eight-year sentences on counts I and V. We first address the argument that the trial court erred in denying the defendant’s motion to suppress the DUI kit blood draw. The defendant argues that, because he did not consent and Officer Murphy did not attempt to obtain a warrant, the DUI kit blood draw violated his rights under the fourth amendment of the United States Constitution. The defendant argues that section 11-501.2(c) is unconstitutional in light of the United States Supreme Court decision of Missouri v. McNeely, 569 U.S. 141 (2013). The finding that this section 11-501.2(c)(2) is unconstitutional does not end the analysis. If the good-faith exception applies, it will support admission of the DUI kit blood draw, notwithstanding section 11-501.2(c)(2)’s unconstitutionality. Evidence will not be excluded where police acted with an “objectively reasonable good-faith belief that their conduct was lawful” as in such cases “there is no illicit conduct to deter.” Accordingly, under the good-faith exception, “searches conducted by police in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” In determining whether the exception applies, a court asks “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” See People v. Harrison, 2016 IL App (5th) 150048 (February 2016) (good faith exception applies to forced blood draws before McNeely). Harrison supports application of the good-faith exception under the facts of this case. As in Harrison, the defendant’s arrest in this case occurred after our supreme court’s decision in People v. Jones, 214 Ill. 2d 187 (2005) but before the 2013 decision in McNeely. We recognize that our recent opinion in Eubanks rejected the State’s reliance on Jones to invoke the good-faith exception. Eubanks is clearly distinguishable. The defendant in Eubanks did not merely decline to consent to the tests; rather, our court emphasized that “physical force was used to obtain Eubanks blood and urine samples,” including that he was “handcuffed to the hospital bed while blood was forcibly drawn from him.” Our supreme court in Jones expressly cautioned that it did not “permit law enforcement officers to use physical force in obtaining blood, urine, and breath samples,” we concluded that the officers in Eubanks “could not have reasonably relied on Jones to authorize such conduct.” We emphasized our supreme court’s statement in Jones that “we do not suggest that a DUI arrestee’s lack of a right to refuse chemical testing permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples.” Although the defendant in this case testified that he initially refused requests for a blood draw, he did not claim (and there is nothing in the record to suggest) that he was physically threatened or restrained in order to obtain the sample. The trial court specifically found that he was not coerced, and that finding is not against the manifest weight of the evidence. As the good-faith exception applies in this case, we affirm the denial of the motion to suppress the DUI kit blood draw. Conviction and sentence affirmed.

People v. Hayes, 2018 IL App (5th) 140223 (February)

Defendant runs over and kills a 7 year old boy, however, the resulting blood draw is out because defendant was never under arrest. People v. Hayes

The defendant, Chad B. Hayes, struck the boy with his vehicle when the boy rode his bicycle in front of the defendant’s vehicle. The accident took place near city hall in Sumner, Illinois. According to the defendant’s statement to police, one of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby. Apparently, the kid rode his bicycle between two parked cars onto the roadway. Clem did not believe that the defendant could have done anything to avoid the accident. The defendant ran into city hall asking for help. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray. The 7 year old victim died. Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening. No one noticed anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated. Chief Murray testified that Deputy Ash asked him to transport the defendant to Lawrence County Memorial Hospital for drug testing. Chief Murray did so. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn. Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. The test indicated the presence of methamphetamine, amphetamine, THC, and naproxen, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)). Chief Murray acknowledged that he did not give the defendant the warning to motorists. The results of initial tests performed by the hospital’s lab were faxed to Deputy Ash later that afternoon. After receiving these results, Deputy Ash placed the defendant under arrest for DUI. Deputy Ash asked the defendant to submit to a second drug test 2 days later. This blood tested negative for the presence of any drugs. Deputy Ash also issued two traffic citations to the defendant for failing to exercise due care (id. § 11-1003.1) and failing to reduce speed to avoid an accident (id. § 11-601(a)). Eventually, the defendant was charged with aggravated DUI (id. § 11-501(d)(1)(F)). The court sentenced the defendant to 54 months in prison. The question before us is whether the results of the drug tests should have been excluded because they were obtained in violation of the fourth amendment to the United States Constitution. A recognized exception to the warrant requirement is voluntary consent to a search. The validity of a warrantless search based on consent thus depends on the voluntariness of the consent. Whether consent is voluntary is a question of fact that must be determined by evaluating the totality of the circumstances. Acquiescence to apparent authority is not the same thing as consent. Consent to a search “must be received, not extracted.” Consent to a search is the waiver of a constitutional right. As such, a “defendant’s intention to surrender this valuable constitutional right should be unmistakably clear.” Consent is voluntary when it is “given freely without duress or coercion.” The State argues that the defendant unambiguously consented to the search through his conduct by getting into the vehicle. The State further argues that his consent was voluntary because there was no evidence that he objected to the request that he submit to the test. But here, the record contains no evidence at all concerning how the test was presented to the defendant or how the defendant responded. We do not know whether Deputy Ash asked the defendant to take the test or demanded that he do so. We do not know whether Deputy Ash told the defendant that he had no right to refuse the test. We do not know whether the defendant agreed to take the test, objected, or merely acquiesced. The State asks us to presume based on this record that the defendant deliberately got into Chief Murray’s vehicle because he willingly agreed to submit to a test he felt free to refuse. We cannot find the waiver of an important constitutional right based on these circumstances. Moreover, even assuming the defendant did anything to unambiguously convey consent, the surrounding circumstances indicate that any such consent was not voluntary. He was transported to the hospital for the test by a uniformed police officer. The officer remained with him at all times, even when he went to the restroom to provide a urine sample. Deputy Ash had the defendant’s vehicle towed from the scene of the accident to be stored until Deputy Ash completed his investigation. We do not believe that a reasonable person confronted with these circumstances would feel free to leave the hospital or refuse to take the test. Considering the totality of these circumstances, we find that the State failed to meet its burden of demonstrating that the defendant voluntarily consented to the tests. Finally, we consider the parties’ arguments concerning implied consent. Section 11- 501.6(a) of the Illinois Vehicle Code provides that any motorist “shall be deemed to have given consent” to drug testing if the motorist is “arrested as evidenced by the issuance of a Uniform Traffic Ticket for any violation of the Illinois Vehicle Code *** with the exception of equipment violations.” 625 ILCS 5/11-501.6(a) (West 2010). The statute, by its express terms, applies only if the defendant has been arrested for a violation of the Illinois Vehicle Code when asked to submit to testing. We agree with the defendant that this condition was not met in this case. There is no dispute in this case that Deputy Ash did not issue any traffic citations to the defendant until two days after he directed the defendant to submit to the test. The defendant was seized within the meaning of the fourth amendment when he submitted to the tests, but he was not under arrest for a violation of the Illinois Vehicle Code as required by the implied consent provision. We read this section as holding that if a test is otherwise proper under the fourth amendment, its results are admissible. We hold that before a motorist may be found to have impliedly consented to this intrusive search, thereby waiving an important constitutional right, he must be under arrest for a violation of the Illinois Vehicle Code. The results should have been excluded. Conviction reversed outright.

See Also Episode 462 - People v. Turner, 2018 IL App (1st) 170204 (February) (good faith exception applies and allows the admissibility of this warrantless blood draw) Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital) Episode 461 – People v. Hayes, 2018 IL App (5th) 140223 (February) (defendant was not ticketed so so state could not establish consent to the blood draw) Episode 439 – People v. Sykes, 2017 IL App (1st) 150023 (December) (no police action when police hold a lady down in the hospital) Episode 423 – People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action) Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron  Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016) Episode 258 - Jeffery Hall Interview - He Discusses The Krystin Rennie Case

Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments?

Mar 16, 2018 19:10

Description:

Episode 464 (Duration 19:10) Here's a quick summary of the cases that suggest, that maybe, houses have more constitutional protection than apartments.

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In This Episode...

We discuss the following cases:

Florida v. Jardines, 133 S. Ct. at 1409 (2013) People v. Burns, 2016 IL 118973 (March) People v. Bonilla, 2017 IL App (3d) 160457 (June) People v. Martin, 2017 IL App (1st) 143255 (June)  Florida v. Jardines

Florida v. Jardines, 133 S. Ct. at 1409 (2013).

“Property based approach” holds that dog brought to the front step of a single family home constitutes a search.  Gist

The Court considered whether using a drug sniffing dog on a homeowner’s porch to investigate the contents of a home was a “search” within the meaning of the fourth amendment.

Facts

Jardines was growing the marijuana in his home. This difference is critical to the United States Supreme Court. This case began when police are told he had a growing operation in his home. DEA agent with a sniff dog knock on front door, the dog alerts to presence of drugs, police leave, and comeback with a warrant. To be clear, the police did not go into the home with the police dog. Before getting the warrant, the officers and the dog remained on the front stoop and only walked on the walkway of the stoop.

Property Rights

The Court stated that pursuant to Katz, “property rights are not the sole measure of Fourth Amendment violations.” The Court stated that the area “immediately surrounding and associated with the home,” known as curtilage, was “part of the home itself for Fourth Amendment purposes.” The Court then assessed whether the officer’s’ investigation “was accomplished through an unlicensed physical intrusion.” The Court stated that a police officer without a warrant “may approach a home and knock, precisely because that is no more than any private citizen might do.”

Holding

Ultimately, the Court found that the use of trained police dogs to investigate a home and its immediate surroundings was a “search” within the meaning of the fourth amendment. The Court commented that the Fourth Amendment actually uses the word “houses” (also known as your home) then held that: The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has undoubtedly occurred. Jardines, 133 S.Ct. 1409 (2013); quoting United States v. Jones, 565 US 945, 132 S.Ct. 945 (2012) (this is a GPS tracking case).

The police were in his home and on his property in an investigative capacity. They did not have permission to be there.

That was a search.

What About The Other Dog Sniff Cases?

The fact that the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. Jardines, 133 S.Ct. 1409 (2013). The Court was well aware of its own case law that said dog sniffs are not searches. However, the Court refused to play the “expectation of a privacy interest” game in this case. Instead, they took a property-based approach.

The House From Jardines In Miami Dade, Florida

Jardines House

People v. Burns

People v. Burns, 2016 IL 118973 (March).

The "no-nights visits" rule is affirmed, can't bring the sniffer dog to your front step for a little sniff action. Facts

After receiving a tip that Defendant is selling weed from her apartment, the police bring a dog to her apartment door. The dog alerts to the presence of contraband. The police then go get a warrant.

Issue

Which begs the question: does the warrantless use of a drug-detection dog at an apartment door, located within a locked apartment building, in the middle of the night, violate defendant’s fourth amendment rights?

Defendant's Argument

Defendant counters that under Jardines, a search warrant is required to conduct a dog-sniff search at the entrance to a home. Indeed, the problem in Jardines, according to Scalia, was that the cops intruded physically on defendant's property in order to conduct a search.

All the relevant factors pointed to the conclusion that this apartment stoop was part of the curtilage of Defendant's home.

Locked Apartment

The court took special note of the fact that the entrances to the apartment building were locked and the common areas were not open to the general public. The court also found that the landing to the defendant’s apartment was curtilage, noting that the landing was directly in front of the apartment and a clearly marked area within a locked building with limited use and restricted access.

The court stated that the police conduct in the case “certainly exceeded the scope of the license to approach the defendant’s apartment door,” as the officers entered a locked building in the middle of the night and remained in the building for more than a very short period of time.

Holding

This intrusion onto her locked front stoop at 3:20 a.m. was declared unconstitutional.

However, Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

Was the court apply a strict property-based approach? Exactly when does it apply? Was the dog dispositive? The front door?

People v. Bonilla

People v. Bonilla, 2017 IL App (3d) 160457 (June).

Constitutional violation did not depend on whether the common door to the apartment was locked. Facts

On a tip police bring a dog to an apartment complex in Moline, Illinois. The exterior doors leading into the apartment building common-area hallways were not locked, and there was no lock, pass card, entry system, or anything whatsoever on the closed exterior doors of the apartment building that would prevent any person off the street from entering into the common-area hallways of the apartment building.

More Facts

Once inside the apartment building, the canine officer walked his drug-detection dog down some of the common-area hallways. As the dog came to apartment 304, however, the dog moved back and forth in the doorway, sniffing at the bottom of the door, and signaled a positive alert for the presence of illegal drugs.

Arrested

The police officers obtained a search warrant for apartment 304 based upon the drug-detection dog’s alert. After obtaining the search warrant, the officers searched the apartment and found a quantity of cannabis and certain other items. Defendant, who lived in apartment 304, was later arrested and charged with unlawful possession of cannabis with intent to deliver.

Property Based Approach

There are two different approaches that a court may be called upon to apply when determining whether a police officer’s actions constitute a search under the fourth amendment— a property-based approach and a privacy-based approach.

If applicable, the property-based approach should be applied first.

There is no need to apply the privacy-based approach if a violation of the fourth amendment has been found under the property-based approach. The property-based approach recognizes a simple baseline of protection that is provided by the fourth amendment as it relates to the property interests specified: that when the government obtains information by physically intruding (trespassing) on a person’s house, papers, or effects, a search within the original meaning of the fourth amendment has undoubtedly occurred.

Was There An Intrusion?

The question a court must ask when applying the property-based approach is whether the police officers intruded (trespassed) upon a constitutionally protected area (one of the protected properties specified in the text of the fourth amendment) to obtain the information in question.

Privacy Based Approach

The privacy-based approach recognizes that property rights are not the sole measurement of the fourth amendment’s protections and that fourth amendment protections also extend to areas in which a person has a reasonable expectation of privacy.

Was There A Reasonable Expectation Of Privacy?

The question a court must ask when applying the privacy based approach is whether the complaining person had a reasonable expectation of privacy in the area invaded (the location or object of the alleged search) by the police.

That is so because the privacy-based approach adds to the fourth amendment protections provided under the property-based approach; it does not diminish those protections and is not a substitute for those protections.

Reexamine Jardines

Prior to the United States Supreme Court’s decision in Jardines, it was generally established that a warrantless police intrusion into a common area of an apartment building did not violate the fourth amendment rights of a defendant tenant.

In Jardines, however, the United States Supreme Court held that a police dog sniff of the front door of a single family home was a search under the fourth amendment. The Supreme Court reached that conclusion, as stated in its majority opinion, by applying a property-based approach to the police officer's’ actions and by finding that the police officers had intruded (trespassed) on the curtilage of the home (the front porch) to gather the information (the alert by the drug detection dog) that was later used as the basis for obtaining a search warrant for the home.

Reexamine Burns

The Illinois Supreme Court later applied the holding of Jardines in the context of a multi unit apartment building in Burns and found that a police dog sniff of the front door of a defendant’s apartment was a search under the fourth amendment because the police officers had intruded on the curtilage (the landing outside of defendant’s apartment door in a locked apartment building) of the defendant’s residence in the middle of the night. Burns, 2016 IL 118973, ¶¶ 32-45.

In reaching that conclusion, the supreme court emphasized that the apartment building where defendant lived was locked and that the common areas of the building were not open to the general public.

This Case

In the present case, although we are mindful of the supreme court’s comment in Burns, we nevertheless conclude that the police officer’s actions constituted a search under the fourth amendment, even though the apartment building involved was unlocked and unsecured.

Analysis

Other than the unlocked status of the building itself, the officer’s conduct in the present case was virtually identical to that of the officer in Burns. The court could not conclude that a person who lives in an unlocked apartment building is entitled to less fourth amendment protection than a person who lives in a locked apartment building.

The fourth amendment draws a firm line at the entrance to the home as the home is first among equals in the protected areas specified in the fourth amendment. At the very core of the fourth amendment is the right of a person to retreat into his or her own home and there to be free from unreasonable governmental intrusion. In providing that protection, the fourth amendment does not differentiate as to the type of home involved.

Can Ignore Privacy Right Cases

The court acknowledged that there is precedent to support the State’s assertion that a person does not have a reasonable expectation of privacy in the common area of an apartment building, that a dog sniff is not a search under the fourth amendment, and that a dog sniff is not the same as the thermal imaging scan.

Nonetheless, the state’s arguments were rejected based on the above analysis. Do we apply property-based approach to all apartments now?

Does the dog matter?

People v. Martin

People v. Martin, 2017 IL App (1st) 143255 (June).

Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building; but this is not a sniff case.  Drug Deal

Police say they observed a man approach defendant and raise his right index finger, whereupon defendant acknowledged the gesture and entered the main door frame of a two story flat.

The door to was slightly ajar. Defendant stood on the immediate threshold and reached into the door inside of the doorframe. Defendant retrieved a blue plastic bag, manipulated it, and then retrieved a smaller unknown item from the bag. Defendant then placed the bag on top of the door and returned to the man, where he received money from and tendered the small unknown item to the man.

Defendant tendered the money to another male who was standing outside of the house. The man was arrested and he said he just purchased heroin. Police then arrested defendant.

The Search

An officer then reached above the doorframe on the inside of the door and recovered the blue bag.

The items inside the blue bag matched the suspect narcotics that were recovered from the man. The baggies were branded with a bomb logo and said “stay high imagine”. The front door was open, and it emptied into a vestibule or common area that had another door leading into the residence.

The police did not have a warrant. 

Issue

The court acquitted defendant of the hand to hand delivery and of possession with intent to deliver but found him guilty of possession of a controlled substance. On appeal defendant challenges the warrantless seizure of the drugs.

Court Takes A Privacy Rights Approach

Under Katz, to claim the protection of the fourth amendment, a person must have exhibited an actual (subjective) expectation of privacy in the place searched or thing seized, and this expectation must be one that society is willing to recognize as “reasonable.”

Jardines Left Things Unsettled

Of note, Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Although Burns applied Jardines to a multi-unit apartment building, the specific contours of Jardines are unsettled.

Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

Under both Katz and Jardines, the type of building at issue matters.

Privacy Rights Cases

Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. See People v. Smith, 152 Ill. 2d 229, 245 (1992) (no reasonable expectation of privacy in a conversation that occurred in an apartment building’s unlocked common area that was shared by other tenants, the landlord, their social guests, and other invitees); People v. Carodine, 374 Ill. App. 3d 16, 23 (2007) (the defendant had no reasonable expectation of privacy in the dryer vent of his three-unit apartment building where dryer vent was in a common area that was accessible to the landlord and other members of the general public); People v. Lyles, 332 Ill. App. 3d 1, 7 (2002) (stating that a tenant has no reasonable expectation of privacy in common areas of an apartment building that are accessible to other tenants and their invitees).

Two Story Flat

Here, the State and defendant dispute how to characterize the two story flat, with the State asserting that it is a multi-unit apartment building and defendant contending that it is a single-family home.

Defendant's mother owned the flat, he was a guest there, and the second story was empty. Nobody was living upstairs. The court found that there is a greater expectation of privacy in duplexes owned and occupied by one family. It should be treated as a single-family home for fourth amendment purposes.

This was not a typical multi unit building where numerous tenants and members of the public were expected to enter. Rather, it was viewed as the family home. The court further stated that “a strict apartment versus single-family house distinction” was troubling because it would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity, citing data showing that a smaller percentage of African-Americans and Hispanics live in one-unit detached houses than whites and that the percentage of households that live in one-unit, detached houses rises with income.

Analysis

As “the Fourth Amendment has drawn a firm line at the entrance to the house”, the area above the inside door frame was a constitutionally protected area. Further, that area outside the door was akin to a porch, which is a “classic exemplar” of curtilage.

Clearly, the officers’ actions were accomplished through an unlicensed physical intrusion.

Here, the police went up the stairs of the flat reached above the inside door frame, and recovered a blue bag. This was well beyond what an ordinary private citizen could do. Here, the police physically intruded on the inside of the home to gather evidence. That the door was open does not change this result. A private citizen would not think that he could breach the open door of a home and investigate its contents. Any physical invasion of the home’s structure by even a fraction of an inch is too much.

Holding

Police exceeded what a private citizen was permitted to do at the front door. The court held that this was a warrantless search under Jardines. Without the suppressed evidence of the narcotics, the State cannot prove that defendant possessed the narcotics and his conviction must be reversed outright. More questions remain?

Would result be different if that was more like an apartment building?

The Two-Story Flat From Martin In Chicago, Illinois

Chicago Two Flat

Former Police Officer With A Law Degree Matthew Taylor Provides Insight And Perspective On The Criminal Law

Mar 3, 2018 54:23

Description:

Episode 459 (Duration 54:23) What do police think about the case law? Do they think about the case law? Matthew Taylor provides some insight.

Attorney Matthew Taylor 

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In This Episode...

"I think that they got it right. It shows that the courts are taking an understanding of what an officer has to do on a daily basis and they are deferring more to the officer's inherent and unique skill set..." -- Matthew Taylor

Retired officer, teacher, lawyer and mentor Matthew Taylor provides unique perspective on the criminal law.

Matthew Taylor

Matthew Taylor is retired from the Palatine Police Department. He served as a school resource officer, general patrol, and instructor to other officers on the law. While he was on the force he obtained his law degree and now practices law full time.

Learn More About Matt Taylor... mjtaylorlaw.com matt@mjtaylorlaw.com (847) 894-8038 "Can't Miss" Moments:

✓ All the important details you've forgotten about the landmark case Terry v. Ohio and why they matter. (Go to 3:10)

✓ What the court got write in 1968. Terry stops and frisks were happening before the term "reasonable suspicion" entered the lexicon. (Go to 7:50)

✓ The "perception separation" makes it hard to understand what policing was like before computers. (Did you know call boxes were invented in Cleveland?) (Go to 9:55)

✓ The reason why Terry was important to law enforcement officers. What changed for them? What reasonable suspicion really means in the streets. The beautiful words were... (Go to 12:00)

✓ The facts described in this case are a pretty common and typical scenario. How you feel about the outcome depends on how you see things. (Go to 13:38)

✓ A sure fire way to set off alarm bells in a police officer's head is to do this. "Those alarm bells is what officers call reasonable suspicion."  -Matthew Taylor (Go to 16:20)

✓ When rolling up your sleeves is the beginning of a bad day.  (Go to 18:44)

✓ "That's a green light and a Christmas gift all in one for an officer to hear that." - Matthew Taylor

✓ "Case law is littered with officers who don't care...that's the burden of every good officer out there, to overcome those officers by doing it right..." - Matthew Taylor (Go to 27:20)

✓ The right way to conduct a police-citizen encounter. What police and attorneys have in common. Why tone and attitude really matter. (Go to 30:44)

✓ The reason why a police uniform can't always be seen as an authoritarian symbol. (Go to 32:15)

✓ How a police officer got a law degree, stayed on the force and became an "officer lawyer." How love for the cases, the law and the constitution turned into a police instructor and scholar. "I'm more of a constitutional enthusiast than I am a scholar but..." - Matthew Taylor  (Go to 43:01)

Cases Mentioned Terry v. Ohio, 392 U.S. 1 (1968 People v. Smith, 2016 IL App (3d) 140648 (March) People v. Gherna, 203 Ill. 2d 165, 178 (2003) Arizona v. Gant, 556 U.S. 332 (2009) Links & Resources Palatine Police Department North East Multi-Regional Training (NEMRT) NEMERT Hostage Negotiation School FBI Crisis Negotiation Ernie Blomquist See Also

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Search & Seizure Cases  One Other Cool Thing Before You Go...

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Advice From A Full Circuit Judge: The Honorable Rene Cruz

Jan 18, 2018 31:15

Description:

Episode 442 (Duration 31:15). Judge Rene Cruz of the 16th Judicial Circuit provides practical advice for attorneys. 

Judge Rene Cruz 16th Circuit Illinois

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"...So I'm an army brat. My father was in the military. So we traveled. I happen to have been born in the country of Panama while my father was serving his second tour in Vietnam." -- Judge Rene Cruz.

Judge Rene Cruz

Before taking the bench, Judge Cruz practiced law in Illinois for 17 years with Ed Gil, his former law partner at Gil & Cruz (Now The Gil Law Group). He's now assigned to family court in Kane County.

Judge Cruz did have an extensive criminal law practice before his judgeship, however, we talked about

his experience in the legal community diversity the road to a judgeship and how he's currently serving the community. "Can't Miss" Moments:

✓ The Judge experienced diversity differently than the rest of us and now thinks of the diversity much differently than the rest of us do. (Go to 3:41) & (Go to 10:58)

✓ Why the judge walked away from a thriving business, a judgeship was the last thing on his radar, so what did he discover that finally motivated him to apply for judge. (Hint: It wasn't the money; he wasn't even sure how much judges get paid.)  (Go to 13:41)

✓ The  judge didn't know a few important things when he first applied for judge. Once, he figured things out the process went a lot smoother for him.  (Go to 15:44)

 ✓ "Some judges would say to me straight off from the beginning, 'I'm being told and I'm hearing that we need some Hispanics on the bench', and the first thing I would tell them is..." - Judge Rene Cruz speaking about when he was a judicial candidate (Go to 14:27)

✓ What do full circuit judges really look at and consider when they are voting for an associate judge?  (Go to 20:00)

✓ Judge Cruz is playing the long game when it comes to promoting diversity on the bench and in law. You'll never guess where he spends his time recruiting and encouraging judicial applicants.  (Go to 24:50)

See Also

You may also want to check out...

Episode 412 How To Become An Illinois State Judge With Scott J. Frankel Episode 301 Retired Judge Allen Anderson: The View From The Bench Episode 256 Interview With Judge Steigman of the Fourth Appellate District Before You Go...

It doesn't matter where you're at in your criminal law practice. Right now you can make a decision that leads to explosive litigation growth.

You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. But what if you could double, triple, even quadruple the number of cases your brain can digest, process and learn from?

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Unreasonably Prolonged Traffic Stop Masks Other Problems With The Dog

Dec 7, 2017 14:31

Description:

People v. Paddy, 20172017 IL App (2d) 160395 (October). Episode 417 (Duration 14:30)

Drug interdiction patrol officer unreasonably prolonged this traffic stop for a drug dog sniff.

 This episode was originally released on the Premium Nuggets Podcast.

Click here to go to full show notes.

Everything You Wanted To Know About The NIU College of Law Criminal Defense Clinic With Professor Cain

Nov 23, 2017 33:14

Description:

Episode 418 (Duration 33:13) The NIU College of Law Criminal Defense Clinic is essentially a law firm staffed by law students - Professor Paul J. Cain reveals how it works on the inside.

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In This Episode

"I love what I'm doing. I love the combination of academics with practice, and it's fun to see the students develop over the course of a semester or even multiple semesters ." -- Paul J. Cain

Professor Paul J. Cain

Professor Paul J. Cain has been a professor at the NIU College of Law for 14 years.  Currently, he is the clinical professor of their Defense Clinic.

The Professor is also the president of the Illinois Association of Criminal Defense Lawyers (November 2017 to November 2018).

"Can't Miss" Moments:

✓ Learn all about the Zeke Giorgi Criminal Defense Clinic. What charges are covered? How students get their cases? How'd you end up in Winnebago County and not Dekalb? Who was Zeke Giorgi? What do the local public defenders think? How do the judges treat the students? Do students do jury trials? (Go to 6:30)

✓ Track a Defense Clinic case from inception to the end. Are students allowed to handle substantive motions and litigation hearings? (Go to 14:12)

✓ There are 2 classes that are mandatory prerequisites the students have to have before being admitted into the clinic. Evidence, criminal procedure, trial advocacy, and mock trial are all just recommended but not required.  (Go to 15:20)

✓ Benefits and value offered by membership to the IACDL... (Illinois Association of Criminal Defense Lawyer) (Go to 22:20)

Links & Resources Paul J. Cain Clinical Professor NIU College of Law Criminal Defense Clinic NIU College of Law Experiential Learning NIU Today: NIU’s Zeke Giorgi Legal Clinic honors 10 years of courtroom advocacy for Rockford community WREX.com: Zeke Giorgi Legal Clinic celebrates decade of service NIU Law Clinical Programs (PDF) NIU College of Law Barbara Vella (attorney and daughter of Zeke Giorgi) See Also

You may also want to check out...

Lighthouse Recovery Inc. Illinois Association of Criminal Defense Lawyers Before You Go...

It doesn't matter where you're at in your criminal law practice. Right now you can make a decision that leads to explosive litigation growth.

You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. But what if you could double, triple, even quadruple the number of cases your brain can digest, process and learn from?

Are you ready to join the other attorneys who have discovered how to make their ears their secret weapon?

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How To Become An Illinois State Judge With Scott J. Frankel

Nov 4, 2017 37:06

Description:

Episode 412 (Duration 37:05) 

What's it take to become an Illinois state judge? 

Scott J. Frankel candidate for Cook County 11th Subcircuit Judge

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In This Episode

"Always have integrity when you walk into the courtroom because the judge you're in front of may be one of the deciding votes in your campaign for associate judge." -- Scott J. Frankel

"If you're thinking of running for circuit court judge you need people, you need a committee, you can't do it by yourself." -- Tony Sasson

Scott J. Frankel

Scott J. Frankel is running for judge in the 11th Subcircuit of Cook County.

He is an Illinois attorney in federal and state court. He has experience in civil law, criminal law, state court, federal court, appeals, and has appeared before the Illinois Supreme Court.

In this 37 minute session, Scott J. Frankel, explains the process and procedure to become an Illinois state judge.

Tony Sasson

Tony Sasson is also an Illinois attorney and campaign manager for Scott J. Frankel.

• (312) 977-9050

• (224) 723-2040

• tony@frankelforjudge.com

"Can't Miss" Moments:

✓ Interested in being a judge some day? You'll have to know the real differences between being an associate judge and circuit judge. (Go to 3:47), (Go to 29:15) & (Go to 30:22)

✓ There's an "application" for some judicial positions. The things you're doing today will effect what goes on that application tomorrow. What can you do now to position yourself for a strong judicial candidacy? (Go to 5:03) & (Go to 9:44)

✓ Winning the vote: Lawyers may have to run a different kind of "campaign". A campaign that seeks to woo other judges. (Go to 6:05)

✓ Where do the lawyer ratings ("not qualified", "qualified", and "highly qualified") come from? (Go to 7:22)

✓ Why you don't want to play dirty or dishonorably even with your less ethical adversaires. (Go to 9:44)

✓ What your colleagues and attorneys down in the trenches talk about when they're discussing future judges. (Go to 11:17)

✓ Thought a full circuit position is what you wanted? Just know that full circuit judges have to run a full electoral and political campaign with all the bells and whistles. (Go to 12:15)

✓ The differences between a sub-circuit election and a county wide judicial election. (Go to 13:07)

✓ BE CAREFUL: Judicial candidates running a full fledged electoral campaign for circuit judge can't run a traditional political campaign. You have to be careful you are following the special rules created for judicial candidates. (Go to 19:05) & (Go to 28:05)

 ✓ The truth about how much money it costs to run for judge. (19:57) & (Go to 26:12)

✓ "Young attorneys should be willing to talk to judges about their experiences on the bench and what route did they take to get the position. It doesn't matter what county you're in. There's always a certain amount of insight the judges can give you about the process in that county." -- Scott J. Frankel (Go to 31:35) 

Links & Resources Scott J. Frankel For Judge Frankel & Cohen Learn More About Scott J. Frankel The Judiciary  - Constitution of the State of Illinois Illinois Code of Judicial Conduct - Canon 7 Illinois Board of Elections Illinois Board of Elections Judicial Guide Illinois Election Code See Also

You may also want to check out...

Episode 301 Retired Judge Allen Anderson: The View From The Bench Episode 256 Interview With Judge Steigman of the Fourth Appellate District Before You Go...

It doesn't matter where you're at in your criminal law practice. Right now you can make a decision that leads to explosive litigation growth.

You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. But what if you could double, triple, even quadruple the number of cases your brain can digest, process and learn from?

Are you ready to join the other attorneys who have discovered how to make their ears their secret weapon?

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What You Don’t Know About The Jason Stockley Shooting Why This Former St. Louis Officer Was Acquitted Of Murder

Oct 3, 2017 39:08

Description:

Missouri v. Stockley, 1622 CR 02213-01 (September 2017). Episode 397 (Duration 39:07)

Former St. Louis Officer Jason Stockley acquitted of Murder. Here's what they didn't tell you.

In This Episode

"It seems more reasonable to conclude that what the State characterizes as a 'puff of smoke' was in reality exhaled breath in cold air. Puffs of smoke are seen multiple times on the dash cam video unrelated to the firing of any gun, but coming from the mouths of officers in cold air." -- Judge Timothy J. Wilson

In This Episode

✓ A law enforcement officer need not retreat or desist from efforts to arrest or prevent  the escape of a person the officer believes to have committed an offense. A law enforcement officer is entitled to use deadly force where the officer reasonably believes the use of deadly force is necessary to effect the arrest and reasonably believes the person is attempting to escape by the use of a deadly weapon or may otherwise endanger life or inflict serious physical injury.  (Go to page 19)

✓ There was also no evidence that Stockley even knew who was being pursued. (Go to page 20)

✓ The Court does not believe Stockley's conduct immediately following the end of the pursuit is consistent with the conduct of a person intentionally killing another person unlawfully. (Go to page 21)

✓ Stockley admitted he was in possession of an AK-47 pistol, he testified he knew his possession of such a weapon was in violation of department policy, but he said he had it with him to use as a deterrent in situations in which he (and other officers) might be facing persons armed with more dangerous weapons than a Baretta service revolver. (Go to page 23)

✓ In regards to the gun the prosecution says Stockley planted in the victim's car: The gun was a full size revolver and not a small gun, such as a derringer, that n fit in the palm of one's hand or into the side pocket on a pair of pants without being obvious. Stockley was not wearing a jacket; if he had such  a gun in his possession it would have been visible on the cell phone video. The tun was too large to fit entirely within any of the pockets on the pants he was wearing, there was no bulge in any pocket indicating a gun within the pocket, and the gun would have been visible if it was tucked into his belt. Three were several officers standing around adjacent to the driver's side of the Buick and not one of them was called to testify that the saw Stockley plant a gun in the Buick. (Go to page 25)

Links & Resources Judicial Findings & Verdict In The Jason Stockley Trial A breakdown of the judge's ruling in Jason Stockley murder case - St. Louis Post-Dispatch Stockley case transcripts reveal misstatements to grand jury - St. Louis Post-Dispatch Terrifying dash cam footage shows a St. Louis police officer shooting and killing a driver - The Sun Laquan McDonald death: Officer indicted on 16 new charges - CNN Prosecutors can use what Officer Van Dyke told union rep at Laquan McDonald shooting - Chicago Tribune Three Chicago cops indicted in alleged cover-up of Laquan McDonald shooting details - Chicago Tribune Dashcam Video of Officer Jason Van Dyke Shooting Laquan McDonald - YouTube Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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238.mp3

Sep 22, 2017 08:47

Description:

Making His Own Way An Attorney Profile Featuring Shady Yassin

Sep 15, 2017 20:46

Description:

Criminal Law Attorney Shady Yassin in Episode 390 (Duration 20:45) describes how he's making his way as a criminal law attorney in Illinois.

Illinois Attorney Shady Yassin

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In This Episode

"It was a cool thing that our friendship merged into a business partnership and it was one that became stronger..." -- Illinois Attorney Shady Yassin.

Attorney Shady Yassin

Shady Yassin is a former Cook County Public Defender 711 Intern.  

He's been licensed since 2010, and currently is a partner at Abdallah Law located in Tinley Park, Illinois.

In This Episode:

✓ Discover how a first generation Palestinian American finds himself in a firm with other first generation Palestinian Americans.  You'll be surprised to learn Shady's parents started out in Puerto Rico.

✓ Ever wonder if the Illinois criminal justice system is welcoming to Muslims? What happens to the daily prayer requirement when you're in the middle of a trial? 

✓ On Shady's first day as a 711 for the Cook County Public Defender he was the only one of his kind. As a test he was asked to go into the lock-up to talk to a pretty intimidating defendant. It was a test. Listen in to see if Shady past the test.  

✓ "Everybody who is not an attorney is telling me, 'Oh, why are you trying to do criminal defense? There's no money there. Why don't you do business? Why don't you do corporate?' That's all I heard."

✓ Any government sector lawyer with the tiniest thought of going "private" needs to see what Shady means when he talks about the "hustler mentality". Shady has some wise advice on receiving other's advice; we can all benefit from this tip.

Links & Resources Abdallah Law Shady Yassin Shady's Partners Above The Law - Law Student of the Day: Shady Yassin More About Shady Yassin Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors

Aug 10, 2017 23:21

Description:

Episode 375 (Duration 23:20) - Former prosecutors who leave their office face uniques circumstances when they represent individuals charged by the same prosecutor's office. 

Attorney Nrupa Patel

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In This Episode

"If there can be any possible conflict you get it in writing..." -- Illinois Attorney Nrupa Patel.

Attorney Nrupa Patel

Attorney Nrupa Patel is a former Assistant State's Attorney from Macon County, Illinois. 

Since June 2017, she has been a partner at the firm of Bolen Robinson & Ellis in Decatur, Illinois where she represents individuals in criminal court.

"Can't Miss" Moments:

✓ Do you know the 3 per se conflicts of interest defense attorneys have to worry about? Relax. Here they are: (1) Where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution (2) Where defense counsel contemporaneously represents a prosecution witness; and (3) Where defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant.

✓ In Nrupa's real life scenario a prospective client was charged while she was still at the prosecutor's office. However, she did not prosecute the case, had no involvement and was pretty sure she didn't discuss the case with anyone. Should she or shouldn't she take the case? What other factors would you like to know about? 

✓ There's one thing most attorneys aren't doing that Nrupa is doing to avoid finding herself in sticky conflict of interest situations. Listen in to discover what she's doing different.

✓ In this area of the law the case law says one thing and the professional rules of responsibility say something else. Listen in to see how the cases and the rules relate to each other.

✓ Nrupa divulges her ultimate decision in an actual case. She also lets us know what details would have changed her decision. And she explains why she resolved an almost identical scenario quite differently. 

Links & Resources Bolen Robinson & Ellis LLP Contacting Nrupa Patel People v. Fields, 2012 IL 112438 Rule 1.11(a)(2) - Special Conflicts Of Interest For Former And Current Government Officers And Employee People v. Schutz, 2017 IL App (4th) 140956 (July) See Also

You may also want to check out...

Episode 039 Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself? Episode 106 Did Drew Peterson’s Attorney Have A Conflict Of Interest When He Signed a Publicity Contract? Episode 176 Prosecutor Probably Had A Conflict of Interest (People v. Kibbons, 2016 IL App (3d) 150090 (April) Episode 056 Ethical Violation After Meeting With Prosecutor Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

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Is It Time To Kill The Brady Rule? And Other Big Discovery Issues With Evan Bruno

Aug 3, 2017 33:26

Description:

In Episode 372 (Duration 33:25), Evan Bruno of Urbana, Illinois dives into some of the current problems with modern discovery rules and procedures.

urbana illinois attorney evan bruno

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In This Episode

"Don't tell me what's exculpatory or not. I may know something you don't know." -- Evan Bruno

Some of the most basic rules of discovery may not be fair nor make much sense. Hit play above to see what I mean.

Illinois Attorney Evan Bruno

Evan Bruno is a criminal law attorney in the Bruno Law Office in Urbana, Illinois.

Evan has clerked for Judge Robert Steigmann of the Illinois Fourth Appellate District. Evan credits the Judge for giving him "the law hook" and the "legal bug."

Evan now works alongside his father and his brother defending the criminally accused in federal and state court.  This aptly named legal office was founded by his father in 1980.

"Can't Miss" Moments:

✓ "The fact that the police and the prosecution are the ones that make the judgment call as as to what is exculpatory, I have a real problem with that." 

✓ Defense attorneys as babysitters - not a good idea.

✓ Here's something you may not have thought about in cases where the accused is housed far away from his attorney's office and the court. 

✓ Why often the accused knows more than his attorney - and how the rules completely ignore the perspective of the person whose rights we're suppose to be protecting. 

✓ The reason why Rule 415 exists can be picked apart and recognized as ridiculous by a three year old. Yet, the rule persists, perhaps for other reasons.

✓ Thought experiment: Imagine before a big trial we lock up the prosecution team in a utility closet with no computers, phones, or electronic equipment of any kind and force them to prepare for trial in there...AND we allow the defense team to pace back and forth outside the door of the closet. Would that feel fair? 

✓ Has Evan identified one area where state court actually get it right and the federal court has it all wrong? 

✓ In almost every case where there is a disagreement the losing side can take it up with the appellate court as the final arbiter. Sometimes this is inadequate and most unfair.

✓ This "pink Cadillac" problem reveals exactly how the current rule has a huge gaping hole in its coverage.

✓ ...and finally, this often overlooked problem with the Brady rule of discovery has quite devastating consequences. Has the rule outlived it's usefulness? Its time may have come, and it's replacement is actually much simpler.

Links & Resources Learn More About Evan Bruno Evan in the news Bruno Law Office Illinois Supreme Court Rule 415. Regulation of Discovery, "Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and..." See Also

You may also want to check out...

Episode 369 Part I With Evan Bruno - A Peek Behind The Illinois Appellate Court System With Evan Bruno Episode 020 Reasonable Doubt Demystified With Evan Bruno Episode 256  How Judge Steigmann Really Feels About Impeachment, Prior Inconsistent Statements, And 725 ILCS 5/115-10.1 Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

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A Peek Behind The Illinois Appellate Court System With Evan Bruno

Jul 27, 2017 29:57

Description:

In Episode 369 (Duration 29:56), Evan Bruno of Urbana, Illinois describes his experience working as a clerk in the Illinois Appellate Court system.


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In This Episode

"It's not cockiness...If you're willing to put in the work and do the research, sometimes the answer is just totally clear." -- Evan Bruno

Beware: By listening to this episode with Evan Bruno you shall be entering into a world of legal geek-ery unlike any other.

Illinois Attorney Evan Bruno

Evan Bruno is a criminal law attorney in the Bruno Law Office in Urbana, Illinois.

Evan has clerked for Judge Robert Steigman of the Illinois Fourth Appellate District. Evan credits the Judge for giving him "the law hook" and the "legal bug."

Evan now works alongside his father and his brother defending the criminally accused in federal and state court.  This aptly named legal office was founded by his father in 1980.

"Can't Miss" Moments:

✓ "It's not about the subject matter. It's about the puzzles." 

What it's like to work for the man who knows the most about Illinois law? Sometimes there's guided instruction. Sometimes there's not. But the opinion is always based on the pure as driven snow, black-letter law.

✓ "Steigmann stage craft" revealed, and other appellate court processes unveiled.

✓ Here's some advice the judge once gave to Evan: "Sometimes you're gonna read an opinion, Evan, and whether you know it or not the judge who wrote it might have been full of crap." [language was cleaned up a bit]

✓ The one golden rule and the one mantra every appellate court tries to live by...We readers of their opinions should be grateful they follow this rule. 

✓ The criminal law attorney's dirty little secret: We don't have the time to keep up with the cases. Very few lawyers have the luxury of being able to envelope themselves in every legal issue they may confront. Evan divulges the solution.

✓ How the "game of telephone" method for setting precedent gets laid out, untangled, and turned inside out. When they're done the rest of us can stop pulling our hair out from the frustration of dealing with confusing legal precedent.

✓ The best way to get your legal juices flowing.

✓ The single most important thing that Evan learned by clerking for Judge Robert Steigmann of the Fourth Appellate District was this...

✓ ...and finally, Evan confesses to doing this one thing that only is done by true legal junkies and goes beyond any legal geek-ery ever demonstrated by the rest of us. (Hint: This involves accessing certain information made available on the web, and Evan has zero shame in doing it.)

Links & Resources Learn More About Evan Bruno Evan in the news Bruno Law Office See Also

You may also want to check out...

Episode 372 Part II With Evan Bruno - Is It Time To Kill The Brady Rule? And Other Big Discovery Issues With Evan Bruno Episode 020 Reasonable Doubt Demystified With Evan Bruno Episode 256  How Judge Steigmann Really Feels About Impeachment, Prior Inconsistent Statements, And 725 ILCS 5/115-10.1 Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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In Legal News: College Dean Resigns Amid Allegations of Sexual...

Jul 21, 2017 24:20

Description:

Episode 366 (Duration 24:20) In Legal News...College Dean Resigns Amid Allegations of Sexual Harassment...Cook County Bail Reform...Investigation of Drug Money in LaSalle County...

In Legal News With Samuel Partida, Jr.

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In This Episode 

✓ College dean makes a pass at young female employee and gets rejected, but still manages to squeeze $95,000 from the law school before quitting. 

✓ Cook county wants to send text messages to defendants to remind them to come to court. Yeah, that's gonna work. 

✓ Investigation continues into whether or not confiscated drug money was misappropriated. I ask: "Can dirty money ever really be cleaned? Ever? Really?"

Links & Resources ABA Journal | NIU gives former law dean $95K for off-campus research - Stephanie Francis Ward Dean's Resignation Letter Daily Chronicle | Dannenmaier's conduct: See the documents leading to NIU dean's administrative leave - Drew Zimmerman WBEZ | Cook County Judge: Bail Can't Be Too High For Poor To Pay - Associated Press The New York Times | Defendants Can’t Be Jailed Solely Because of Inability to Post Bail, Judge Says - Richard A. Oppel Jr. Circuit Court of Cook County Press Release | Evans changes cash-bail process for more pretrial release The Chief Judge's Bail Reform Order The Times | Donnelly defends right to investigate, prosecute Towne See Also

You may also want to check out...

Episode 359 IllinoisCaseLaw.com | What You Need To Know About The Illinois Bail Reform Law  Episode 360 PremiumNuggets.com | 102 Additional Police Forces Statewide Directed By A State’s Attorney Not What We Need Episode 081 IllinoisCaseLaw.com | State’s Attorney Power | This Prosecutor Misuses Investigator Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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What You Need To Know About The Illinois Bail Reform Law

Jul 8, 2017 20:22

Description:

Episode 359 (Duration 20:21) Illinois has taken a crack at bail reform. Here are the dirty little details on the new Illinois Bail Reform Law. 

Illinois Bail Reform Law

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In This Episode

"Same old song." -- Anonymous Lawyer.

Let's take a closer look at the new Illinois bail reform law...

I think it's fair to say the goal was to empty the jails of a certain class offender, the so called, "class B" offenders.

Class B offenders are defined in the newly minted 725 ILCS 5/102-7.2.

The main prong of the law is covered in 725 ILCS 5/110-5(a-5). That's where they put the provision saying that there shall be a presumption that class B offenders get a "non-monetary" bail condition.

Section 725 ILCS 5/110-6(a-5) then describes this "automatic" hearing where detainees get an automatic bail-bond review to see why the heck they're still in jail.

And finally, they invented a $30 credit that can be applied towards any inmates "monetary bail" - whatever the heck that means. See 725 ILCS 5/110-14. 

Links & Resources Bail law a good measure you don't want to use - by Burt Constable Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed How Do Bail Bonds Work? Sample Bail Bond Related Criminal Law Motions Illinois bail reform law draws mixed reviews Article 110 BAIL Meaning of Words and Phrases 725 ILCS 5/102-7.2 Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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How To File And Win A Change In Venue Motion With Professor Beckett

Jun 20, 2017 54:42

Description:

In Episode 357 (Duration 54:41), trial attorney and Professor Steve Beckett of the University of Illinois School of law reveals his secrets when litigating a change in venue motion.

Professor J Steven Beckett

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Download A Sample Motion &
Sample Survey Data Report 

DUI and Search & Seizure Case Lists
Change in venue motions can be a little tricky.
Download these documents to take a peek
at a winning motion and sample survey report.

Download Sample Motion & Data

Download Sample Motion & Data

 

In This Episode

"Fair and impartial doesn't mean you're ignorant." -- Professor Beckett

Professor J. Steven Beckett reveals his litigation secrets as he unfolds the intricacies of a motion to change venue...I mean a motion to change place of trial.

Professor J. Steven Beckett

Professor J. Steven Beckett has been a trial attorney in Illinois for 44 years.

In 1987, The Professor began teaching trial advocacy at the University of Illinois College of Law. He has taught various other law classes over the years. He's currently retired from his practice and the law school.

The Professor cut his teeth with public opinion polls when he litigated several high profile obscenity cases.

"Can't Miss" Moments:

✓ This was the very first question the Professor was asking himself after he saw the charges against Curtis Lovelace. It is not a coincidence that Curtis was charged in Adams county but tried in Sangamon County. (Go to 5:50)

✓ The little known history of the law around moving a trial. We go from territory days to modern times...and even cover a few famous Abraham Lincoln cases. (Go to 7:35)

✓ When it comes to motions for change in venue (change the place of trial) there is one specific area that if overlooked can cost you the motion. If this issue is present in your case it can practically guarantee you'll win the motion. (Go to 15:25)

✓ What's your hunch on how modern social media influences this issue? (Go to 17:21)

✓ Everything you need to know about professional public opinion polls and how to use this powerful legal weapon in your litigation. How are they done? What do they cost? Where to find a good polster? How long do they take? (Go to 17:52) & (Go to 31:45)

✓ Listen real close around minute 21:20, the Professor drops a real gem about jury bias and impartiality. This nugget is worth some real money, and the Professor gave it to you for free! Understanding this will change how you handle these motions in the future and ratchet up your chances of winning them. (Go to 21:20)

✓ Here are the exact questions to ask during voir dire when you're probing this topic. If the judge let's you, the Professor lays out a logical and efficient way to conduct the questioning (Hint: the Professor explains how to lure the judge into doing it your way.) (Go to 22:22) & (Go to 40:53)

✓ Be prepared to ask for these two things in the unfortunate scenario where you lose the motion to change place of trial. (Go to 37:52)

Links & Resources The Professor's Book: Illinois Criminal Law And Procedure A Law Enforcement Perspective/Statutes, Cases, and Commentary Sound Jury Consulting (the firm used by the Professor in the Curtis Lovelace case) 725 ILCS 5/114-6 - Motion To Change Place of Trial William "Duff" Armstrong Case (Famous Lincoln Case: The Almanac Case) Father Chiniquy Slander Case (Famous Lincoln Case: Peter Spink v. Charles Chiniquy) Adams v. Texas (SCOTUS case on impartial jury) Sheppard v. Maxwell (SCOTUS case on impartial jury) More SCOTUS on Impartial Jury People v. Taylor (great Illinois case mentioned by The Professor where attorney kind of manages his own poll) People v. Hall (old obscenity case handled by Beckett where poll data was used) See Also

You may also want to check out...

Episode 334 The Curtis Lovelace Case  Episode 320 Evan Parke On The Curtis Lovelace Case Episode 013 Change of Venue Due To Pretrial Publicity Hard To Win Before You Go...

Make sure to download the materials discussed by the Professor in the podcast.

He mentioned how he helped file and win a motion to change venue in a recent high profile case.

Hit the link below to take a peek at the documents that were actually filed in the case:

Download A Sample Motion &
Sample Survey Data Report 

DUI and Search & Seizure Case Lists
Change in venue motions can be a little tricky.
Download these documents to take a peek
at a winning motion and sample survey report.

Download Sample Motion & Data

Download Sample Motion & Data

The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant With Kim Bilbrey

May 17, 2017 14:18

Description:

In Episode 340 (Duration 14:18) of the Criminal Nuggets Podcast, Kim Bilbrey of the Kane County Public Defender's office indulges me as I ask about one of the easiest ways for police to search a car without a warrant.

Hit play to hear what she said. 

Public Defender Kim Bilbrey

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Defending Difficult Drug Cases
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6 Hrs CLE With 1 Hr Ethics

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Register Now (March 19, 2017).

 

In this Episode

Kim Bilbrey has been with the Kane County Public Defender's Office for 9 years. 

She and her colleagues have had some success defending cases involving drug dog sniffs. Additionally, she and her team have brainstormed numerous ways in which the legal landscape around warrantless car searches is changing.

"Can't Miss" Moments

✓ These magic words instantly allow an officer to search a car without a warrant. (Go to 0:37) & (Go to 1:58 & 2:44)

✓ What happens when a soccer mom who hasn't smoked weed in her life has passengers in her car who reek of the stuff. (Go to 2:04)

✓ The presence of a prescription bottle in a car does not indicate or necessarily signal criminal activity. The new cannabis environment means we may have to rethink how we think about the odor of cannabis. (Go to 3:21)

✓Possession of a gun in Illinois is not necessarily illegal anymore. So, when an officer sees a gun it's not obvious at all that a crime is being committed. So too, the fundamental question here is this: If cannabis is not necessarily illegal anymore then how can the odor of cannabis justify a warrantless search of a car?  (Go to 4:39) & (Go to 5:08) 

✓ Kim is going be presenting at the IACDL Drug Seminar on Friday May 19, 2017. She'll be explaining how she breaks down a drug dog sniff case and reveal her secrets on how she's found success in these cases. Hit the link below to learn more and get registered for this CLE. (Go to 8:41)

Links & Resources Illinois Association of Criminal Defense Lawyers Drug Seminar Learn More About The IACDL Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here? Ball-Hitch "Obstructing" Case - Traffic Stop Based on Reasonable Mistake of Law is Not Illegal Learn More & Register

This CLE presentation provides 6 hours of CLE credit including 1 hour of professional responsibility credit. 

Hit the button below to learn more.

Defending Difficult Drug Cases
Register Now: Friday, May 19th
Rockford, Illinois
6 Hrs CLE With 1 Hr Ethics

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Register Now (March 19, 2017).

Terry Hake And The Graylord Investigation Turn "Crook County" Into Cook County

May 10, 2017 30:31

Description:

Terry Hake talks about Greylord In Episode 337 (Duration 30:31). Operation Greylord was a massive undercover sting operation that targeted corrupt judges and court officials in Cook County in the early 1980's. 

Terry Hake Operation Greylord

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In This Episode

"I saw funny things going on. I saw attorneys meeting with judges before their cases were tried behind closed doors for 20 minutes, and then I'd go out and lose the case." -- Terry Hake

Meet Terry Hake, the former attorney turned FBI agent who helped clean-up courthouse corruption.

When Terry Hake became an assistant Cook County State's Attorney in in 1977 the legal landscape in the courthouse was not like we know it today.

No case was immune from the fix. This was not just going on in misdemeanor rooms where the stakes weren't as high. Every case could be bought including:

Murders Rapes and Child Molestations

In this interview you'll learn how a young, inexperienced - completely disillusioned - prosecutor turns state's evidence, works undercover and starts recording corrupt conversations.

"Can't Miss" Moments:

✓ If you think the criminal courtrooms were a cesspool of corruption, you should have seen the divorce rooms. You won't believe what they were buying and selling there.

✓ There's a very practical reason why life for honest lawyers was tough during this time period. Even honest attorneys had their reputation tarnished in certain circles.

✓ There was one thing the feds told Terry he had to think long and hard about before deciding to go undercover against judges. Terry took a week and balanced his biggest fear with his disgust for the system and decided to do it. For the next 3 years he worked undercover and...

✓ In 2014, Terry came full circle and came back to the Cook County State's Attorney's office as an assistant prosecutor. He was either going to be hailed as a hero by his peers or condemned as a snitch. Listen in to hear how Terry describes his experience when he came back.

✓ The truth about working undercover for the FBI. Newly minted FBI agents train and get sworn in at Quantico. Not Terry. He was sworn in a garage in Addison, Illinois. 

Buy Terry's Book Amazon Books Barnes & Noble Target Audible Amazon Audio Book American Bar Association  Links & Resources TerryHake.com Jerri Williams Interview Part I Jerri Williams Interview Part II FBI Archives Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can increase any attorney's litigation skills no matter where they currently at.

If you're looking for the easiest way to keep up with the cases and ready to begin having a systematic-steady litigation advantage over your opponents then hit the link below.

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What Criminal Law Lawyers Need To Know About The Curtis Lovelace Trial With Curtis Lovelace

May 5, 2017 51:51

Description:

 

On March 10, 2017, Curtis Lovelace was acquitted of his first wife's murder. In Episode 334 (Duration 51:50) of the Criminal Nuggets Podcast, Curtis Lovelace lays out the legal lessons from his experience.

Curtis Lovelace

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He was falsely accused of killing his wife, was acquitted, and now he's talking about it.

About Curtis Lovelace

Curtis Lovelace is former star football player at the University of Illinois where he was the team captain. He was an Adams County prosecutor from 2005 through 2012. 

In 2014 his life changed dramatically when he was indicted for murder.

Bullet History of His Case

Here's a brief summary of the Curtis Lovelace case:

Former star football player Former prosecutor First Wife Dies Autopsy Inconclusive Lead detective closes the case Nothing Happens for 8 years Remarries Estranged second wife says Curtis killed first wife Estranged second wife talks to police New detective takes the case New examiner recruited New cause of death determined Homicide First trial is a hung jury First defense team quits Exoneration Project and Evan Parke join the defense Released on $350,000 bond after 651 days in custody Undisclosed emails discovered Appears detective was "coroner shopping" Detective admits he destroyed emails Prosecutors admit detective lied Found not guilty in second trial To Learn More... Death on Valentine's Day - The Curtis Lovelace Story on CBS forty eight hours Lovelace Case from WGEM.com Lovelace attorneys claim evidence knowingly withheld by prosecution - WGEM.com Ex-Prosecutor Found Not Guilty in Retrial for Wife's Alleged Suffocation - People Magazine Former prosecutor and U. of I. football captain found not guilty in wife's death - Chicago Tribune Lovelace found not guilty - IllinoisTimes What's Inside This Episode

✓ What's worse than your wife dieing on Valentine's Day? For Curtis it was when he was subsequently charged with her murder. 651 days is the time he lost away from his family. (Go to 1:18)

✓ A case study in what can go wrong when a pathologist lists the cause of death as undetermined. Seriously, can't they come up with box to check that says undetermined, but not homicide? (Go to case 2:18) & (Go to 8:40)

✓ The world's worst example of "a woman scorned". (Go to 3:40) & (Go to 11:24) & (Go to 23:31)

✓ How an elder care officer makes detective and stumbles upon his first case. (Go to 4:38)

✓ What do you do when your pathologists keep saying the cause of death is something other than a homicide? Naturally, you keep looking until until you find one who says it's a homicide. (Go to 7:25)  

✓ When a pathologist opined a women was suffocated completely ignoring the facts as reported by a respected lead detective and other witnesses. (Go to 10:06)

✓ The very first person you'd think a new detective on a case would interview and talk to would be this person. Unfortunately for Curtis, this interview was skipped. (Go to 11:54)

✓ Did the trial court inappropriately admit prior bad acts? Was this a proper application of the law to protect victims of domestic violence or just mud slinging by the prosecution? (Go to 13:27)

✓ The significance of the stolen computer. (Go to 19:20)

✓ For prosecutors the mother-of-all "caught with your pants down" moments came days before the second trial and forced them to tell the judge their lead detective withheld critical evidence. (Go to 25:25)

✓ When criminal litigation is like peeling an onion. (Go to 27:56)

✓ The detective said he turned over the documents to the prosecution, but said he was told to take it back. The prosecutor says he's a big fat liar. (Go to 30:54)

✓ In the end, it was the new detective versus the old detective. (Go to 34:01)

✓ The single biggest lesson here is not for the defense bar but for prosecutors who take law enforcement at their word and don't...(Go to 35:34) 

✓ The scary thing here is that the prosecution was an extremely experienced murder trial team. If tunnel vision plagued the investigators then the prosecution added to the fiasco by doing this. (36:52)

✓ The single biggest takeaway and legal lesson for this former prosecutor and criminal law lawyer that has now been permanently chiseled into his legal brain is the following. (Go to 39:59)

✓ Why it's problematic when pathologist know who's paying the bill. (Go to 42:34)

See Also...

Episode 320 With Evan Parke - Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're looking for the easiest way to keep up with the cases and ready to master any Illinois criminal courtroom then hit the link below.

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Litigating "Knock And Talk" Warrantless Entries With Alana De Leon

Apr 26, 2017 43:21

Description:


Alana De Leon is an Illinois criminal law litigator worth keeping an eye on. In episode 328 (Duration 43:21) of the Criminal Nuggets Podcast she helps us explore some of the intricacies of "knock and talk" warrantless entries. 

Alana De Leon

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There is a certain amount of timidness often seen in young criminal law litigators. 

An uncertainty and apprehension that only melts away with raw experience.

Well, Alana De Leon, has none of that.

She's built her experience and insight on warrantless entries into homes, so called "knock and talks",  by rolling up her sleeves and challenging them in court.

About Alana De Leon

Alana is the daughter of John De Leon. Her father has a long career as a Cook County attorney.

After graduating from De Paul Law School she was sworn in as an Illinois attorney in November of 2015. 

She focuses her practice on federal and state criminal defense where she's developed a passion for constitutional issues. If it involves crime, murder and mayhem then it has her attention.

Find Out More

To find out more About Alana De Leon go here:

Facebook Avvo Website Contact

To contact Alana send her a message here:

alana.m.deleon(AT)gmail(dot)com

What's In This Episode

✓ The "Knock and Talk" is the weird little cousin of the three types of police-citizen contacts. It's not quite a Terry stop but something else. (Go to 6:39)

✓ How is a "knock and talk" related to a "stop and frisk"? With a "stop and frisk" you are out in the open a lot more vulnerable, but a "knock and talk" involves this most sacred structure. (Go to 9:15)

✓ The most common scenarios leading up to a "knock and talk".  Surveillance details and itchy officers may not be patient enough to wait for a warrant or.... (Go to 11:06)

✓ All "knock and talks" rely on this one type of exception to the warrant requirement. This is the number one reason police say they don't need a warrant. (Go to 12:07)

✓ Are you aware of the biggest factors that can sway a judge when you're running a "knock and talk" motion? (Go to 14:05)

✓ You'll be surprised how often the "foot in the door" scenario turns up in these cases. Here's how to handle them. (Go to 15:52)

✓ When the entire S.W.A.T. team is waiting outside the home, that says a lot about the intent of the "knock and talker". (Go to 16:56)

✓ Here's what you need to know about written consent forms. I'll say this though, generally, the consent form should come before the actual search.  (Go to 18:05)

✓ When expressed written consent does not mean consent. (Go to 19:43)

✓ If the police enter your home and start searching you have an affirmative duty to tell them to stop...WRONG! Failure to speak is not equated with acquiescing to a search. The police alway have the burden to prove they had permission. (Go to 22:57)

✓ The real reason attorneys should think about vigorously litigating these cases. (Go to 26:36)

✓ O.K. - Here's the second main reason attorneys should think about litigating these issues. (Go to 30:43)

✓Did you know the case law outlines the proper course of conduct for police who are met with resistance when they attempt to gain entry without a warrant? (Go to 34:09)

✓ Alana has yet to come across a case where a client is saying these things and using this type of language. Somehow, though, police reports say defendant's use these words all the time. (Go to 35:14)

✓ Remarkably, police may get on the stand and not have an answer for this one most important somewhat obvious question. Encountering these cops on these cases is when the fun really begins. (Go to 37:25)

See Also

You may also want to check out podcast episode 014

This was the last time we talked about "knock and talks".

Many of the issues highlighted by Alana are front and center here. Particularly, it's a great example of how police should not conduct a "knock and talk."

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opponent?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA

Apr 21, 2017 52:39

Description:

Evan Parke made extensive use of Illinois FOIA requests in the defense of Curtis Lovelace. In Episode 320 (Duration 52:38) we look at how he did it.

Evan Parke

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About Evan Parke

Evan is from the same general area in Quincy, Illinois that Curtis Lovelace and his first wife, Cory, lived. Now he practices law primarily in Washington, D.C. where his firm ---Parke PLLC---handles complex and sophisticated white collar, civil and regulatory matters for companies and individuals.

In the Curtis Lovelace case, Evan performed extensive FOIA inquiries pro bono. 

At all times, his FOIA efforts remained independent of and were not influenced by the Exoneration Project defense team.

Curtis Lovelace Case

Here's a 3-minute summary of the Curtis Lovelace case:

Former star football player Former prosecutor First Wife Dies Autopsy Inconclusive Nothing Happens for 8 years Remarries Estranged second wife says Curtis killed first wife Estranged second wife talks to police New detective takes the case New examiner gets involved New cause of death determined Homicide First trial is a hung jury First Defense team quits Exoneration Project and Evan Parke join the defense Undisclosed emails discovered Appears detective was "coroner shopping" Detective admits he destroyed emails Curtis found not guilty See Also... Lovelace Case from WGEM.com Lovelace attorneys claim evidence knowingly withheld by prosecution - WGEM.com NOT GUILTY: Firm client acquitted of murder charges in high profile case - LinkedIn Publishing Ex-Prosecutor Found Not Guilty in Retrial for Wife's Alleged Suffocation - People Magazine Former prosecutor and U. of I. football captain found not guilty in wife's death - Chicago Tribune Lovelace found not guilty - IllinoisTimes Links & Resources Illinois FOIA Illinois Attorney General On FOIA Frequently Asked Questions Sample FOIA Request What's In This Episode

✓ Have you ever used the FOIA in a criminal defense case? FOIA rules don't prohibit it's use to strictly "civil" cases. Do you know what you can and what you can't get through FOIA?  (Go to 4:33)

✓ The one government agency that's excluded from the FOIA and the weird little exception to this exception. Plus, the number one reason agencies cite to avoid having to comply with a FOIA request. (Go to 6:08)

✓ Why sometimes in a FOIA request you actually don't want the agency to tender documents and you'd much rather prefer they claim a certain exemption. (Go to 8:08)

✓ How a Federal Communications Commission investigations attorney gets involved in a state murder trial that doesn't smell right. (Go to 10:40)

✓ How do you start a FOIA request? What are its goals? Who can execute them? What do you ask for? (Go to 14:13) & (Go to 46:11)

✓ The most typical and common response you'll get in a FOIA request and how not to react to it. (Go to 15:42)

✓ An extremely simple practice tip that's going to maximize your FOIA results and arm you with powerful weapons you can use to squeeze what you need from the agency in question. (18:17)

✓ Evan Parke discovered what the lead detective was really thinking and was able to uncover things the detective wanted buried and kept far away from the lead defense team. (Go to 19:42)

✓ The crazy things, never disclosed to the defense team, that Evan uncovered about one key prosecutorial witness. (23:10) & (Go to 32:43)

✓ This is one of the main things you're looking for in your FOIA requests. When you got this you know you're in business. (27:22)

✓ The tipping point that caused Evan to go all in on the Quincy Police Department and what made him just ask for the mother load. (31:00)

✓ Evan: "We all were thinking: 'there's some there there.'" (Go to 31:44)

✓ Evan: "But I was not expecting what I received a couple weeks later." (Go to 34:23)

✓ Lead detective caught red handed in an email admitting he deleted other emails. (Hint: the defense team was not suppose to ever read this email) (Go to 35:09)

✓ Perhaps the most damning emails to the prosecution's case was the back and forth between the detective and the pathologists that made it clear and obvious the detective was "coroner shopping" (Go to 36:32)

✓ How these FOIA requests affected this trial. (39:46)

✓ More practical tips for criminal law attorneys. These tips are wise, prudent activities to be followed in non FOIA settings. (Go to 42:02)

✓ FOIA ain't for sissies. They are labor intensive and require real legal work and pressure. If you go down this track prepare to roll up your sleeves and expect friction. A lot of friction. (43:18)

✓ When you need to find yourself a FOIA "buddie". (Go to 47:37)

See Also...

Episode 334 With Curtis Lovelace - What Criminal Law Lawyers Need To Know About The Curtis Lovelace Trial With Curtis Lovelace

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opponent?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron

Apr 12, 2017 35:33

Description:

In Episode 319 (Duration 35:33), Anthony Cameron sits down with us to talk about how police can enforce a warrant for a suspect's blood.

More and more DUI's will be proven based on the chemicals in a person's blood. 

Anthony Cameron Interview

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Which begs the question: What exactly happens when a person refuses to give up their blood even though there's a warrant?

Well, Anthony Cameron helps us figure this out.

About Anthony Cameron

Anthony Cameron is a lawyer in Quincy, Illinois. Anthony was Adams County state's attorney from 1980 to 1984. Now, his practice does it's fare share of criminal defense.

However, Anthony does not limit his practice to only criminal justice cases.

Any dilemma involving conflict with a government agency is in his wheelhouse.

Important Links & Resources Birchfield v. North Dakota  Birchfield v. North Dakota (audio summary) Driving Under The Influence of Drugs People v. Brooks 2016 IL App (5th) 150095-U What's In This Episode

✓ What is a blood draw? (7:13)

✓ Why contempt of court is a horrible way to force someone to give up their blood. (Go to  8:06)

✓ The truth about hospital medical staff when they encounter an individual absolutely refusing to submit to a blood sample withdrawal. (Go to 9:20)

✓ An anecdotal account of a case where an officer was looking for the one state that was willing to strap a guy down to take his blood. (Go to 10:21)

✓ Illinois has chosen its remedy to force DUI suspects to give up their blood. It's not contempt of court or a criminal charge but this. (Go to 10:41)

✓ "What is the State's remedy when the defendant says, 'I'm sorry sir. I know you have this warrant, but I'm not giving you permission to take my blood.'?" (Go to 11:27)

✓ The only crime where the defendant gets to control the crime scene. (Go to 11:58)

✓ How Illinois implied consent law works. (Go to 13:18)

✓ The story in Birchfield begins with police getting a warrant for a DUI suspect's blood. (Go to 15:27)

✓ Illinois can absolutely choose to criminalize refusing to give up a biological sample. For now, they have chosen this other route. (Go to 17:11)

✓ The thing I didn't understand about charging someone with obstruction of justice when they refuse to comply with a warrant for their blood. (Go to 17:52)

✓ Respiration and absorption are biological processes, do you "knowingly" perform them? (Go to 19:03)

✓ The one time Anthony bit his lip and held back during a "bogus" plea deal. (Go to 20:13)

✓ This former state's attorneys says he's looked through the code and he doesn't see a charge that would allow authorities to charge, penalize or otherwise coerce a hypothetical defendant who refuses to give blood after a warrant. (For now, that is.) (Go to 21:17)

✓ Yea, but what about a simple charge of obstructing for "interfering" with lawful police activity? (Go to 21:41)

✓ The problem with the use of force in the execution of any warrant for biological material...This is the number one thing a hospital supervisor is thinking about. (Hint: It ain't worrying about your health.) (Go to 22:43)

✓ "Defensive medicine" has been a term for more than 50 years. (Go to 23:25)

✓ The right way to get yourself charged and convicted of obstruction of justice. (Go to 23:35)

✓ Why we think we'll be seeing more and more "blood" cases. (Hint: Benevolent and compassionate cannabis is on the rise) (Go to 27:24)

✓ WARNING: This scared the crap out of Anthony when he was going through his own physical rehab and got a taste of those pain killers. (Go to 28:12)

✓ A little prediction about what Anthony thinks we'll see from law enforcement in this area. (Go to 30:23)

✓ The seminal case on many of these blood cases is before the Illinois Supreme Court. You bet we'll be following it here. You never know when a case is going to walk through your doors, and it turns out to be the "big one". (Go to 31:34)

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opponent?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

How Double Jeopardy Really Works

Apr 6, 2017 21:50

Description:

People v. Staple, 2016 IL App (4th) 160061 (December). Episode 317 (Duration 21:49)

This case does a great job of digging down into the very basics of double jeopardy.

How Double Jeopardy Really Works

You Ever Notice...

You ever notice how at the end of a case that has been reversed and remanded for a new trial judges are very careful to include a line that says that Defendant was proven guilty beyond a reasonable doubt.

What's that all about?

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The answer lies in the doctrine of double jeopardy.

In this broadcast I republished an episode that was previously only available to Premium Nugget subscribers is now made available to everyone for free.

Two DUI Charges

The case begins with the fact that the defendant was simultaneously charged with misdemeanor DUI and felony DUI charges exact same course of conduct.

He had both a “DT” file and a “CF” file.

Dismissal

He plead guilty to the misdemeanor and moved the trial court to dismiss the felony charges, claiming double jeopardy had attached when he plead to the misdemeanor.

The trial court granted defendant’s motion to dismiss.

The reviewing court reversed this decision.

Double Jeopardy

The fifth amendment to the United States Constitution, made applicable to the states via the fourteenth amendment, provides, in part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. See also Ill. Const. 1970, art. I, § 10; 720 ILCS 5/3-4.

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal,
(2) a second prosecution for the same offense following conviction, and
(3) multiple punishments for the same offense.

However, the rules with regard to double jeopardy, however, should not be applied in a mechanical nature, especially if the situation is such that the interests the rules seek to protect are not endangered and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

Lesser Included

Notably, double jeopardy clause did not prohibit the State from prosecuting lesser included offenses along with the more serious charges.

When a defendant pleads guilty to lesser included offenses he has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.

The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an implied acquittal which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.

There simply isn’t any of the governmental overreaching that double jeopardy is supposed to prevent.

Shield Not A Sword

On the other hand, ending prosecution would deny the State its right to one full and fair opportunity to convict those who have violated its laws.

In this case, it is clear defendant was aware of the pending felony charges when he pleaded guilty to the misdemeanor charges.

As the United State Supreme Court stated, a defendant should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

This case presents none of the interests double jeopardy seeks to protect.

Holding

Defendant was well aware of the pending felony charges when he pleaded guilty to the misdemeanor charges. Additionally, the State has not marshaled its resources and evidence more than once or honed its presentation of the case through a trial on the misdemeanor charges.

Accordingly, the court concluded double jeopardy does not bar the State from pursuing the felony charges that were pending at the time defendant pleaded guilty to the lesser-included misdemeanor charges.

Before You Go…

If you're reading this then you've made yourself eligible to enter into a drawing to win a free mp3 player pre-loaded with all my prior Premium Nugget episodes.

This stuff is not available anywhere else.

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Racial Bigotry In The Jury | Should The Rules Allow It?

Mar 22, 2017 06:59

Description:


Should the rules allow judges to do something about bigotry that's discovered during jury deliberations?

Your browser does not support the audio element.

The recent opinion from the Supreme Court of the United States, Pena-Rodriguez v. Colorado, SCOTUS (March 2017) poses a dilemma for trial judges.

What to do when it becomes apparent that a bigot was allowed to deliberate in a criminal case?

What Happened

The defendant was convicted by jury trial in Colarado of sexaually contact with minors. Two jurors told defense counsel that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness.

Defendant’s counsel reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors.

Here are some of things the third juror (biased juror) told the other jurors:

● He “believed the defendant was guilty because, in the biased juror’s experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”

● Dude said Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.”

● The biased juror further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”

● Finally, the guy said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “an illegal.”

Ultimately, though, the judge didn't do anything about this bigotry in the jury deliberation room.

The reason was because of something called the...

The "No-Impeachment" Rule

A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.

This principle, itself centuries old, is often referred to as the "no-impeachment" rule.

Origins of the Rule

The original idea behind the rule was that a juror could not “impeach” their verdict by talking about their deliberation.

So the rule did not allow them to testify about their subjective mental process or about objective events that occurred during deliberations.

The rule morphed from there. 

Federal Rule 606(b)

The common-law development of the no-impeachment rule reached a milestone in 1975, when Congress adopted the Federal Rules of Evidence, including Rule 606(b).

Congress, endorsed a broad "no-impeachment" rule, with only limited exceptions for outside extraneous influences on the jurors. The current version of Rule 606(b) states as follows:

“(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form."

Illinois Rule 606(b) - Inquiry Into Validity or Verdict or Indictment

The Illinois Rules says,

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify (1) whether any extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received concerning a matter about which the juror would be precluded from testifying."

Illinois Rule of Evidence 606(b)

Issue

The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.

In this case, the Court must decide whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.

Before You Go…

This is the kind of stuff I talk about the Premium Nuggets Podcast.

This is a podcast produced exclusively for Illinois Criminal Law Attorneys.

If podcasts are new to you, then get started by hitting the button below. That way you join other Illinois criminal law attorneys who receive daily email updates relevant to criminal lawyers AND you'll start to see what this is all about.

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February 2017 Illinois Criminal Case Law Summary - The Audio Round-Up

Mar 15, 2017 05:42

Description:

This is the February 2017 Illinois criminal case law audio summary. Episode 303 (Duration 20:28)

February 2017 Illinois Criminal Case Law Summary

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January 2017 Illinois Criminal Case List - An Audio Review Of The January Cases

Mar 7, 2017 03:20

Description:

This is the January 2017 Illinois criminal case law audio summary. Episode 302 (Duration 16:53)

January 2017 Illinois Criminal Case Law
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Retired Judge Allen Anderson: The View From The Bench

Mar 1, 2017 01:01:21

Description:

Episode 301 (Duration 1:01:21) features an inside view on what judges really think. 

Retired Judge Allen Anderson provides useful insight both new and experienced criminal law attorneys will find extremely valuable.

Retired Judge Allen Anderson

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Show Me The Secret.

 

Before I left the Kane County State's Attorney's Office my last assignment was in courtroom 311 before Judge Allen Anderson. 

Judge Anderson was one of those judge's that just made you better. I like to think there is only 2 things to do when you are in front of a judge like Judge Anderson. 

You either:

Grow as an attorney and get better Or you complain about "all the work" 

I like to think I went with option 1.

About Jude Anderson

In 1972 Allen Anderson was sworn in as an Illinois attorney.

He graduated from the John Marshall Law School in Chicago, and was admitted before he had even taken the LSAT.

By January of 2000 he was sworn in as a Kane County, Illinois Judge. 

What's In This Episode

✓ (14:11) The single most important ability that stood out and really separated the best attorneys from the rest of the herd. The most experienced courtroom litigators could do this one thing consistently and always improved their clients chances of winning the best possible outcome.

✓ (18:38) Discover the kind of attorney the judge respected the most and appreciated having in his courtroom. These were not always the most talented or skilled attorneys.

✓ (20:45) The Judge explains how police officers, and for that matter all other witnesses on the stand, could have been more effective. (Hint: 100% of the blame goes to the attorney when this wasn't done. There is a super simple remedy you can start implementing right away.)

✓ (25:20) Talking to the jury after a trial was one of the most enjoyable parts of being a judge. Find out the most common question the jury had for the judge, how he answered it, and how the Judge feels about our jury system.

✓ (28:50) What to do if you want to be a great trial attorney. The best lawyers in front of a jury were rarely the most flamboyant or animated attorneys. The judge knew he had an amature on the case when he saw this.

✓ (33:03) The Judge shares deep insight and raw experience extremely helpful in deciding between the a bench or a jury trial. Any attorney who tries cases will appreciate this frank discussion on when it's best to ditch the jury.

✓ (36:49) "One size doesn't really fit all." Listen up: The Judge explains how rational judges think about sentencing. If you really want to make a difference at sentencing you and your client can do one thing. Character witnesses have their place, but there's something way more effective you can be doing that gives you the best shot at keeping your client out of prison. Plus, the Judge reveals an underutilized resource that can be having a huge impact in your sentencing hearings right now.

✓ (39:44) Sometimes well thought out and thourough legal briefs hurt your case. Sometimes citations and resources up the yazoo just don't help. There is a way to tell if your research and argument is good enough. This advice alone can sky rocket your litigation results and save you priceless research time. (Hint: Judges actually read, actively weigh, and appreciate your written arguments and case citations.)

✓ (40:52) How to know if the criminal law is for you.

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opponent?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret.

When Well Motivated Good Intentioned People Do The WRONG Thing

Feb 17, 2017 16:21

Description:

One of my biggest fears as a criminal law attorney is knowing my representation failed to prevent a wrongful conviction. Episode 296 (Duration 16:21)Center on Wrongful Convictions Free Symposium

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The Bluhm Legal Clinic Center on Wrongful Convictions from the Northwestern Pritzker School of Law is conducting its Spring 2017  Symposium on Friday, March 10, 2017. 

This program, entitled "Hot Topics in Criminal Justice: What You Need To Know",  is Free and provides approved CLE for Illinois attorneys. 

Bonus

Any attorney who emails me at partidasam@IllinoisCaseLaw.com and lets me know that you've registered for this Symposium will receive an additional 1.75 hours of pre-approved CLE credit.

Just let me know that you've registered for the Symposium and I'll send you your bonus ethics CLE mp3 file.

For a limited time after you register, I’ll offer you my “Better Call Saul” Ethics Hour course for FREE. This course takes a fun and relaxed approach as it examines the wacky scenarios the fictional character Saul Goodman finds himself in.

Register Now For The Center on Wrongful Convictions Spring 2017 Symposium

This is FREE CLE for Illinois Attorneys.

Register Now

Register Now (March 10).

 

Symposium Highlights

✓ The Cook County Public Defender AND The Cook County State's Attorney will participate in the same discussion panel discussing implicit racial bias and decision making in the criminal justice. Tell me you don't want to be in the room when that goes down?

✓ Dana Holland is a real life, wrongfully convicted exoneree. He'll be in another panel discussion with the appellate prosecutor who litigated the appeal of the landmark decision People v. Lerma. This was the case that finally recognized eyewitness identification expert witnesses as litigate and appropriate evidence in certain cases. 

✓ There's something here for everyone. Firearm and toolmark identification expert believes this area of forensic science is not completely lost. He thinks it has a place in a courtroom. You just have to know exactly where that place is at. 

✓ Be there when a real life big city homicide detective confesses to eliciting at least one false confession in his career. No cover up, denial or blaming the defendant ensued. Instead he dug deep to figure out why heck it happened. He'll share his findings with you...if you are there.

✓ Come on dude, clear your calendar take the day off and come hang out with me. It's FREE. We'll be hanging out at the Northwestern School of Law in Chicago, and be learning from A-list presenters. I'll let you take me out to lunch. I just figured, you know...since the symposium is free.

Register Now

(remember to email me for your FREE bonus CLE)

How Ed Walters & Phil Rosenthal Democratized Legal Research: Now With Fastcase 7 They Made It Gorgeous

Feb 7, 2017 34:28

Description:

Here's what litigators need to know about developments in legal research. Episode 290 (Duration 34:28)

What would you build if you discovered your neighbor was a genius physicist?

Ed Walters on Fastcase 7
Subscribe: iTunes | Google PlayAndroid | RSS | Direct Down load

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Well, Ed Walters decided to revolutionize legal research. In this episode, Ed Walters, co-founder and chief executive officer of fastcase, stops by the Criminal Nuggets to tell his story.

...and the topic of legal research may have also come up.

How To Become The Smartest Lawyer In The Courtroom

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret Mast.

 

Legal research software has come a long way. 

Fastcase is currently in the process of rolling out its latest version, fastcase 7. No matter how frequently or infrequently you "hit the books" and dive into a legal research project, fastcase 7 promises to make the experience as painless as possible. 

About Ed Walters

 In 1999, Ed Walters was telling his neighbor about how a big corporate client was complaining about the legal research fees his firm and other law offices were racking up.

Ed's neighbor just so happened to be a brilliant physicist who taught physics with Stephen Hawking at Caltech. So when the neighbor asked him what he wanted to do about it,

...things got real.

Many work nights and weekends later, fastcase was born. What Ed and his neighbor, Phil Rosenthal, did was revolutionize legal research. To see how they did it, listen to this 34 minute podcast.

fastcase 7

Fastcase 7 has been designed to democratize legal research. Ed Walters also said one of the goals was to "make legal research less stupid." One of the ways they met their goals was by taking advantage of the horizontal, high aspect ratio and high definition features of modern computing screens.

Give it a test run and see for yourself. Have they managed to...

(1) Make modern legal research easily accessible 
(2) While balancing simplicity of use with robust and powerful features?

If your mission is to find what you need fast and easy then you'll want to listen to this interview.  

Important Links & Resources About Ed Walters fastcase fastcase.com/education LawSitesBlog | Exclusive First Look: All New Version of Fastcase Out Today in Beta | by Robert Ambrogi LawSitesBlog | Fastcase Begins Broad Rollout Of Its All-New Fastcase 7 Platform | by Robert Ambrogi DeweyBStretgic | Meet Fastcase 7: The (not so) Little (search) Engine That Could and Did! | by  Jean P. O'Grady Legal Rebels | For Fastcase founders, the message is: Change, and do it faster! (podcast) | by Stephanie F. Ward Internet for Lawyers | Fastcase 7: Better Than a Tesla | by Carole Levitt [DOWNLOAD] the fastcase app for iPhone [DOWNLOAD] the fastcase app for Android What's In This Episode

✓ From Ed's own lips: the story of how in 1999 even big corporate clients with deep pockets were crying about expensive legal research fees, and what they wanted Ed to do about it. This is about the time Ed discovered his next door neighbor was a Caltech physicist. - Go to 1:19 

✓ Beautiful and gorgeous, fast and accessible...I almost forgot we were talking about legal software.

✓ Modern software has to be beautiful - even gorgeous - to the user, it has to have enough functionality to be worth it's while, yet remain simple to use and accessible. Yet true democratization only happens when the price point becomes reasonable. The legacy legal research companies could not square this circle. - Go to 4:02 to see how fastcase did it.

✓ And get this: fastcase didn't just pick one state or one jurisdiction in 1999, to figure things out, they went big right from the get-go across all 50 states and jurisdictions. Listen in to discover how they made it work. - Go to 5:38

✓ The paradox of legal research is that the data bases draw from free public domain sources. Why the hell was it so expensive then? - Go to 6:01

✓ Do you know the difference between an editorial research structure versus an arithmetic strategy? Ed & Phil sure did. - Go to 6:09

✓ fastcase has become one of the biggest law libraries in the world. It has one of the largest subscriptions services in the United States. There you can read every single law review article ever written in America. If you are any kind of legal researcher, I think you'll find what you need there. - Go to 7:10

✓ In 1994, Yahoo was indexing the web by hand. Google came along and did it better and faster with machine learning. - Go to 7:58

✓ Legacy legal research firms still depend on people to fulfill important aspects of their service. The fastcase system relies on software, machine learning, and results of prior searches. - Go to 9:15

✓ 2/3 of every lawyer in the United States has access to fastcase. Are you taking advantage of it? Here's how to make the most of it. - Go to 10:36

✓ [DOWNLOAD] the fastcase app. It's FREE!! Never get blindsided by an opponent's case in court. With the app you can instantly see the thing without leaving the courtroom. Sync the app to your desktop account and you'll unlock even more powerful features. - Go to 10:50

✓ The "quantum interface" technology that allows fastcase to live up to its name by actually making it blazing fast. - Go to 13:01

✓ The nuts & bolts of using fastcase: How to quickly find what you need and filter out the noise by using "libraries."  - Go to 15:19

✓ REVEALED: The valuable information contained in the "interactive timeline." There are shaded circles plotted over time at the bottom of a search. (Hint: There's valuable information in there that may reveal exactly what you're looking for.) - Go to 17:12

✓ Sometimes your legal research can be lead astray when you spend hours in the woods in a fruitless search simply because you use one wrong word. Use the "tag cloud" to find the right words. - Go to 18:05

✓ Your first search often reports every relevant case your looking for, right? You know it doesn't work like that. Learn how fastcase "forecite" can save your butt. - Go to 20:35

✓ "If you can search Google, you can search fastcase." - Go to 22:19

✓ Why you won't see a "terms and connectors" or a boolean search in fastcase 7. (Note: Feel free to use a natural language or boolean search. Both will work.) - Go to 22:57

✓ The best way to move cheese. - Go to 23:44

✓ The easiest way to save time is to search multiple data sets or libraries simultaneously. Some legal research firms haven't figured this out yet. This feature is 100% supported on fastcase 7. - Go to 26:29

✓ How accessibility, democratization, and affordability of the law all mean the same thing. - Go to 29:29

Before You Go…

Access to the law is crucial to zealous and effective advocacy. And I'm extremely confident most Illinois criminal law attorneys have access to fastcase 7 through their membership of a bar association.

Digging in and truly mastering one area of the law is another thing.

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

How To Become The Smartest Lawyer In The Courtroom

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret.

December 2016: Two Fundamental Principles Rang Through Loud And Clear

Jan 27, 2017 25:30

Description:

This month featured two fundamental principles that rang through loud and clear.

It's an open question if December 2016 marks the beginning of a new paradigm in Illinois sentencing...or will the Illinois Supreme Court knock down this "experiment" in sentencing by the appellate courts.

Plus, we relearned a hard lesson about widespread police misconduct.

Download the December Case List Now

Why read the cases when you can listen?

This is where you quickly and efficiently get up to speed with the cases.

Don't forget to download your copy of the case list to peruse when you feel good and ready...or you can listen to the cases by pushing "play" and subscribing now.

Click below to save your PDF copy now.

Download Your Copy
December 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Nowscript

Add To My Library Nowscript The Top Criminal Cases For December 2016

Here's a quick snapshot of what's included in the podcast and the December case list:

1. People v. Harris

This 18 year old gets a new sentencing hearing because he had a 76 year de facto life sentence  

2. People v. Horta

This 18 year old does not get a new sentencing hearing even though he had a 59 year de facto sentence.  Hmmm? 

3. People v. Busse

How do you steal quarters out of a vending machine without breaking the machine? Why this is the case to have in your back pocket for every single nonviolent sentencing hearing you have to do.

4. People v. Smith

How do you measure 21 years of age when it comes to mandatory X sentencing?

5. People v. Gonzalez

Notorious corrupt detective handled this defendant's witness identification. The witness changed her tune after the detective was done with her...but defendant is entitled to no appellate relief.

6. People v. Hauad

This murder defendant likely did not commit the murder....appellate relief denied! 

7. People v. McDonald

Why you shouldn't overlook the standard of review for lesser includes. It 100%  effects what you should argue to get your lesser included admitted. 

8. People v. Evans

This step-grand mother was treated badly by the trial judge. Now he get's to retry the case. 

9. People v. Fernandez

Sometimes your ID and passport don't prove a freak-en thing. See how this defendant's identification discovered in "his" bedroom failed to establish it was "his" bedroom.

10. People v. Burnett

Never jump on the floorboard of your van when it's being stolen. Even if the defendant is not suffering from hallucinations, disorganized thinking, and drug addiction; it can't turn out good for you.

11. People v. Wiggins

How does Texas's lack gun laws effect a Texans liability for gun possession in Illinois?

12. People v. Gutierrez

This defendant went to bed with the wrong girl. Soon thereafter the police where in the bedroom and he was in handcuffs. See how this cases touches on almost everything we ever talk about on the podcast.

13. People v. Cielak

Let's nitpick the observation period, just for the reviewing court to tell us "substantial" compliance means we haven't proven a thing.

14. People v. Kavanaugh

There's no reward for acing the field sobriety tests.

15. People v. Parker

This defendant actually asked her, "Do you think I'm going to rape you." You replied, "Yes!". How do you think this affected the consent issue?

16. People v. Vara

A peek behind the relatively new anti-"grooming" statute.

17. People v. Applewhite

What happens when 115-10 statements collide with Rule 613(c)?

18. People v. Staple

The rule against double jeopardy is intended to be a shield and not a sword. At the trial level, defendant quite effectively destroyed the State in this fencing match.  

Before You Go...

The hard work has already been done for you. To get your hands on the December 2016 Illinois criminal case list just click the orange button below.

Download Your Copy
December 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Nowscript

Add To My Library Nowscript

Mandatory X Sentencing & Custodial Interrogations Of Inmates

Jan 25, 2017 08:07

Description:

People v. Smith, 2016 IL 119659 (December). Episode 288 (Duration 8:06) 

Defendant is eligible for mandatory x sentencing because he turned 21 by the time the court found him guilty even though he was under 21 at the time he was charged.

“Any Evidence” Justifies A Lesser Included Instruction (Not Any “Credible” Evidence)

Jan 25, 2017 04:46

Description:

People v. McDonald, 2016 IL 118882 (December). Episode 287 (Duration 4:45)

What's the appropriate standard a reviewing court should follow when deciding whether there was error in not giving a lesser included instruction: Abuse of discretion or de novo review?

Insanity Defense Can’t Depend On The Outcome Of The Fitness Report

Jan 25, 2017 07:59

Description:

People v. Burnett, 2016 IL App (1st) 141033 (December). Episode 286 (Duration 7:59)

Trial judge denies an insanity defense to a defendant with recognized schizophrenia, psychotic disorder, suffering from hallucinations, “disorganized thinking,” drug addiction, and an IQ of 72, placing him within a “borderline range of cognitive functioning.”

115-10 Statements Trump Rule 613(c) Statements

Jan 24, 2017 05:50

Description:

People v. Applewhite, 2016 IL App (4th) 140558 (December). Episode 285 (Duration 5:49)

115-10 statements trumps Rule 613(c) which prohibits prior consistent statements. 

Defendant Likely Tortured Into Confessing: Relief Not Warranted

Jan 19, 2017 05:45

Description:

People v. Hauad, 2016 IL App (1st) 150583 (December). Episode 284 (Duration 5:44)

The Torture Commission Report constitutes only a reassessment of evidence available to defendant before he filed his prior postconviction petitions, and thus it does not qualify as new evidence.

Insufficient Evidence Of Habitation In This Search Warrant Case

Jan 18, 2017 03:57

Description:

People v. Fernandez, 2016 IL App (1st) 141667 (December). Episode 283 (Duration 3:57)

17 years of for possession with intent to deliver reversed in this search warrant case.

Corrupt Officer Not A Good Enough Reason For Appellate Relief

Jan 17, 2017 07:52

Description:

People v. Gonzalez, 2016 IL App (1st) 141660 (December). Episode 282 (Duration 7:51)

Defendant not entitled to a third stage evidentiary hearing even though a notoriously corrupt detective handled the witness identifications in his case.

Two Youthful Offenders Two Different Sentences

Jan 13, 2017 12:33

Description:

People v. Harris, 2016 IL App (1st) 141744 (December) & People v. Horta, 2016 IL App (2nd)140714 (December). Episode 281 (Duration 12:32)

18 year old shooter gets a de facto life sentence of 76 years which shock the moral sense of the community (according to this appellate panel). While another 18 year old receives 59 years for a heinous murder that sticks.

People v. Harris Facts

Defendant shot and killed one person at a gas station.

He shot another person but that person survived. Then he pointed his gun at a third person and pulled the trigger. But he had run out of bullets. Defendant was 18 years old and this appeared to be some kind of dispute between defendant and the victims.

Sentence

The aggregate sentence was 76 years: 45 years of imprisonment on the murder conviction (20 years for the offense plus 25 years for the mandatory firearm enhancement), 26 years for one attempt murder (6 years plus 20 years for the mandatory firearm enhancement); and 31 years for the other attempt murder (6 years plus 25 years enhancement).

The attempted murder counts were to run concurrently with each other, but consecutively to the murder sentence.

Issue

Defendant alleges that this lengthy term is actually a “mandatory de facto life sentence,” and the interaction of these statutes prevented the trial court from exercising any discretion or taking into account his youth or rehabilitative potential. This statutory scheme, according to defendant, violates both the federal and state constitutions as applied to him. He challenges these statutes under both the eighth amendment of the federal constitution and the “proportionate penalties” clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).

The Constitution

The Illinois constitution provides, “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.

This clause is generally referred to as the “proportionate penalties” clause, but the second half of the section would be better considered as its own concept: the “rehabilitation” clause.

The mandate that all criminal penalties be determined “with the objective of restoring the offender to useful citizenship” is no less a requirement than the rest of the section, and has yet to receive the scrutiny and attention it properly deserves as a distinctive component of Illinois’ constitution. Defendant may show a violation of this clause if his sentence is “cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.”

As society evolves, “so too do our concepts of elemental decency and fairness which shape the moral sense of the community.” So we must consider objective evidence and “the community’s changing standard of moral decency.”

De Facto Life Sentence

The court concluded this was a de facto life sentence; at best, he would be released at age 89.

Interestingly, the court saw there was no Eighth Amendment violation here as illustrated by the Roper, Grahm, Miller trilogy. The Court drew a line between juveniles and adults at the age of 18 years; while it acknowledged that the line was arbitrary, it “must be drawn.”

However, the court held that this 76-year sentence violates article I, section 11 of the Illinois Constitution, with its language mandating that penalties should have “the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.

Youthful Offenders

The court noted that the new statutory language after Roper, Graham, and Miller “stand for the proposition that a sentencing body must have a chance to take into account mitigating circumstances, i.e., a juvenile’s age and attendant circumstances, before sentencing the juvenile to the harshest possibility penalty.”

The new statutory scheme and the preceding case law incorporate the separation of powers doctrine and reinstate judicial discretion in juvenile sentencing. Research in neurobiology and developmental psychology has shown that the brain doesn’t finish developing until the mid-20s, far later than was previously thought. Young adults are more similar to adolescents than fully mature adults in important ways.

They are more susceptible to peer pressure, less future-oriented and more volatile in emotionally charged settings.

Further, the Illinois Supreme Court has recognized that research on juvenile maturity and brain development might also apply to young adults. Many of the concerns and policies underlying our juvenile court system apply with equal force to a person of defendant’s age.

Holding

The confluence of sentencing statutes, which the trial court was required to apply, is absolutely contrary to that constitutional objective of the rehabilitation clause.

The reviewing court was saying that his sentencing should have been similarly specific to his own circumstances, to effectuate the constitutional mandate of restoring Harris to useful citizenship.

The court said it shocks the moral sense of the community to send this young adult to prison for the remainder of his life, with no chance to rehabilitate himself into a useful member of society.

The application of these enhancements prevented the trial court from constructing a sentence that had any chance of returning Harris to society, even if the court thought that Harris was a good candidate to rehabilitate himself.

Strip Judicial Discretion

The court urged the legislature to consider the research regarding brain development in young adults who are not legally juveniles when analyzing the sentencing statutes for adults, including consecutive sentencing, truth in sentencing, and mandatory sentencing enhancements.

These statutory provisions strip judicial discretion when our criminal justice system would be better served by a case-by-case analysis in which the sentence imposed is individualized to the offender and the offense.

The Dissent

See the dissent who wrote that the trial court could have imposed a life sentence, but exercised its discretion to instead impose the minimum term authorized by law.

The dissent rightly argued that defendant’s stable home life is not a mitigating factor; however, that evidence, along with his educational achievements, does support the notion that he might be able to rehabilitate himself if given the opportunity. Or, in the words of our constitution, might be able to restore himself to “useful citizenship.”

The trial court is simply not at liberty to impose a lesser sentence on remand. And while I share the majority’s concern over the length of Harris’ minimum prison sentence, the remedy lies with the legislature, not in ad hoc determinations made by this court or by trial judges. The same proportionate penalties clause argument could be advanced by a 20-year-old, a 25-year-old or a 30-year-old defendant who had no prior criminal convictions.

And while a compelling argument can be made that vesting greater sentencing discretion in trial courts would result in fewer de facto life sentences for young offenders, the legislature has not chosen to do so.

People v. Horta Facts

Defendant was 18 years old with no juvenile record and one adult Class 4 felony for which he had received probation.

The trial established that he was not a principal but an accomplice to the murder; he did not plan it, contact the other participants, or participate in the strangulation.

The victim was tortured, beat, and bags placed over his head and tied closed. His role was only to hold a gun. One Codefendant convicted of first degree murder was sentenced to 29 years’ imprisonment. He had a serious criminal history and had been involved in a large drug distribution scheme. One flipper pleaded guilty to obstructing justice, a Class 4 felony, and had not yet been sentenced. Two other codefendants received 35 years and 40 years.

Defendant challenged his conviction and 59 year sentence.

This was some kind of vigilantism, with no evidence that the victim he had been involved in a prior kidnapping and rape of a girl. Defendant, “without hesitation,” agreed to participate in the murder. Defendant told the police that he not only pointed a gun at the victim but ordered him to get on his knees and asked him whether he would like defendant to put a bullet into his head.

Moreover, he helped to dispose of the body and accepted $1000 from the victim’s pockets as compensation for his role in the murder.

Wasn't Life

Defendant concedes that his sentence is within the statutory limits; indeed, it could easily have been much longer.

The trial court could have imposed life imprisonment, based on the jury’s finding of exceptionally brutal or heinous conduct. Even after declining this option, the court could have imposed a total of 75 years’ imprisonment—the maximum of the base range plus the mandatory 15-year add-on.

Instead, defendant received a total of 59 years’ imprisonment—24 years more than the effective minimum, but only 14 years more than what he himself requested.

Analysis

The court held that the trial court’s weighing of the various factors in aggravation and mitigation did not exceed its broad discretion or that defendant’s sentence, although unquestionably severe, departed from the spirit and purpose of the law or was manifestly disproportionate to the offense.

There were several factors in aggravation that the trial court properly considered.

For one, although the court did not use the jury’s finding of exceptionally brutal or heinous conduct to sentence defendant to life, it quite reasonably considered the premeditation and extreme brutality of the victim’s torture-murder, as well as its utter gratuitousness.

Defendant attached himself to a group that planned this execution with only the flimsiest grounds to suspect the victim of any basis for their revenge.

He died not immediately but slowly (how slowly is uncertain) from strangulation or asphyxiation. And, before he died, he suffered severe external and internal wounds from blows to his head, neck, and chest, and from the application of the blowtorch to his genitalia and legs.

Seriousness of the Offense

The seriousness of the offense has been called the most important consideration in sentencing. The crime here was premeditated, gratuitous, and sadistic to a degree that must be considered extraordinary even for a first-degree murder. The extreme heinousness of the offense was not the only aggravating factor on which the trial court properly relied. The court also considered that defendant was compensated for the offense, receiving $1000 for one evening’s work.

Youthful Offender

Defendant returns to the theme that his youth and relatively light criminal record militate against a sentence that, in effect, treated his rehabilitative potential as deserving no weight in the determination of his punishment. He concludes that, in effect, the mandatory 15-year add-on prevented the trial court from following its constitutional obligation to base his sentence not only on the seriousness of his crime but also on the objective of restoring him to useful citizenship.

The recent Supreme Court and Illinois Supreme Court precedents are of no aid to defendant.

Although he contends that the reasoning on which they are based should apply to his case, in which he was less than a year past his eighteenth birthday when he committed his offense, those opinions explicitly limit their scope to the sentencing of those who were under 18 years old at the time of their crimes.

A line must be drawn.

The age of 18 is the point where society draws the line for many purposes between childhood and adulthood.

Not a Life Sentence

In any event, the Court’s eighth-amendment jurisprudence would be of no help to defendant. He did not receive the harshest possible penalty for his crime, and the sentencing scheme, considered as a whole, gave the trial court the discretion to impose a prison term of as little as 35 years.

That is not a de facto life sentence.

In the Illinois precedents mandatory enhancements (including mandatory consecutive sentences) drastically limited the trial judges’ latitude in applying factors in mitigation.

And, in those cases, there was reason to believe that the mandatory enhancements frustrated the trial judges’ intentions by imposing sweeping legislative mandates that had draconian consequences and restricted or nearly neutralized the judges’ application of individualized attention to the circumstances of the particular defendants.

That is far from the situation here.

Sentence Appropriate

Defendant faced a minimum sentence of 20 years without the mandatory enhancement and 35 years with it. The trial court, finding numerous factors in aggravation and little in mitigation, sentenced him to 44 years’ imprisonment plus the 15-year add-on.

To the extent that he received a de facto life sentence, it was less the result of the add-on and more the result of the trial court’s exercise of its still considerable discretion. Based on its individualized assessment of defendant’s criminal conduct, character, and background, the court chose a base sentence that was 24 years more than the minimum—but 16 years less than the maximum, even discounting the available option of life imprisonment based on exceptionally brutal or heinous conduct.

These realities do not support any contention that the application of the mandatory addon resulted in a sentence that shocks the conscience of the community or is inconsistent with precedent from either the Supreme Court or our state’s courts. Defendant’s proportionate penalties claim fails.

Paltry Crime For Paltry Sum Leads To Un-Paltry Sentence

Jan 11, 2017 08:27

Description:

People v. Busse, 2016 IL App (1st) 142941 (December). Episode 280 (Duration 8:27)

A paltry crime for a paltry sum does not warrant the paltry sentence of 12 years.

DUI Dismissal Does Not Implicate Double Jeopardy

Jan 11, 2017 08:36

Description:

People v. Staple, 2016 IL App (4th) 160061 (December). Episode 279 (Duration 8:36)

Defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI.

Charges

Defendant was simultaneously charged with misdemeanor DUI and felony DUI for the exact same course of conduct.

He had both a “DT” file and a “CF” file.

Dismissal

He plead guilty to the misdemeanor and moved the trial court to dismiss the felony charges, claiming double jeopardy had attached when he plead to the misdemeanor.

The trial court granted defendant’s motion to dismiss.

The reviewing court reversed this decision.

Double Jeopardy

The fifth amendment to the United States Constitution, made applicable to the states via the fourteenth amendment, provides, in part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. See also Ill. Const. 1970, art. I, § 10; 720 ILCS 5/3-4.

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal, 
(2) a second prosecution for the same offense following conviction, and 
(3) multiple punishments for the same offense.

However, the rules with regard to double jeopardy, however, should not be applied in a mechanical nature, especially if the situation is such that the interests the rules seek to protect are not endangered and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

Lesser Included

Notably, double jeopardy clause did not prohibit the State from prosecuting lesser included offenses along with the more serious charges.

When a defendant pleads guilty to lesser included offenses he has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.

The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an implied acquittal which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.

There simply isn’t any of the governmental overreaching that double jeopardy is supposed to prevent.

Shield Not A Sword

On the other hand, ending prosecution would deny the State its right to one full and fair opportunity to convict those who have violated its laws.

In this case, it is clear defendant was aware of the pending felony charges when he pleaded guilty to the misdemeanor charges.

As the United State Supreme Court stated, a defendant should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

This case presents none of the interests double jeopardy seeks to protect.

Holding

Defendant was well aware of the pending felony charges when he pleaded guilty to the misdemeanor charges. Additionally, the State has not marshaled its resources and evidence more than once or honed its presentation of the case through a trial on the misdemeanor charges.

Accordingly, the court concluded double jeopardy does not bar the State from pursuing the felony charges that were pending at the time defendant pleaded guilty to the lesser-included misdemeanor charges.

How To Win A Motion For Funds With Joshua Kutnick

Jan 10, 2017 21:28

Description:

Criminal law attorney Joshua B. Kutnick has seen some success with a motion for funds. Episode 278 (Duration 23:42)

If you're not quite sure exactly what this is then buckle down and listen up because Josh will have you winning this motion in no time.
Motion For Funds


Subscribe: iTunes | Google PlayAndroid | RSS | Direct Download

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DIRECT DOWNLOAD

Not only does Joshua Kutnick walk us through the litigation steps of this type of motion, he also provided a sample motion for you to add to your own arsenal. You can download it below.

Download This Sample
Motion For Funds
(Now Available)

sample motion for fundsLerma plus Kinion equals a Motion For Funds For Eyewitness Expert Fees. Add this sample motion to your library right now. Thanks Joshua!

Add To My Library Now

Add To My Library Now.

 

Joshua B. Kutnick

Joshua B. Kutnick is a sole practitioner who limits his practice to the criminal law. He's been at it for 17 years and handles cases in both federal and state court. To find out more about his practice visit his website at www.kutnicklaw.com. Additionally, he is always available to answer questions at the following phone number: 1 (312) 441-0211.

Lerma plus Kinion

Here's the thing: People v. Lerma says in some cases a criminal defendant should be allowed to call an eyewitness expert in their defense. But what if your client can't afford to pay for one? Is your client just out of luck? Not necessarily.

Maybe the state or the court can pay for it. Attorney Kutnick steps in and gives us the foundation for a Motion For Funds...

Then he circles back and illustrates how such a motion can come in handy to help hire an eyewitness expert.

There is something useful and practical here for everyone.

Important Links & Resources 725 ILCS 5/113-3(d) - Expert Witness Fees People v. Kinion, 97 Ill.2d 322 (1983) People v. Lawson, 163 Ill.2d 187 (1994) In re T.W., 402 Ill. App (3d) 981 (2010) People v. Lerma, 2016 IL 118496 (January) Sample Motion For Funds See Also Professor Karen Daniel For More Insight On Eyewitness Expert Litigation See Also Real Life Eyewitness Identification Expert Professor Shari Berkowitz In This Episode

✓ What's better than winning a motion to admit an eyewitness expert in your defense? Getting the State to pay for it.

✓ What every criminal law attorney needs to know about paying for an expert.

✓ WARNING: Don't just read and rely on the funds statute. It's 100% misleading and contradictory. Josh explains how the Illinois Supreme Court has come in and completely reinterpreted that section. 

✓ When 250 dollars doesn't mean $250.

✓ Do you know the 3 prongs you need to cover for a successful Motion For Funds?

✓ The secret to getting the court to pay your expert fees even though your client could afford to pay your own attorney fees. 

✓ The quickest way to a reversal is to deny the defendant the opportunity to fully defend himself. Denial of a desperately needed expert simply because you lack the funds affects this fundamental right.

✓ Establishing that an expert witness helps your case is enough to win this motion...Wrong! You're going to have to do a little more work for the money. You'll also have to establish...

✓ What you can do to help increase your odds of winning this motion. It's like "juicing" the hearing before you get started, and it completely improves your chances of getting the court to release some funds on your client's behalf (Hint: it involves a little seed money.)

✓ Practical real life examples from Joshua's practice. How he used a motion for funds to pay for two experts in the same case! One was a video expert who was allowed to examine a videotape and assess it for tampering. The other was a firearms expert. In a third successes story, Joshua petitioned the court for fees to obtain a psychologist who helped him make sense of some psychological records. 

✓ What an "opinion letter" reveals and how to use it in court. 

✓ Joshua reveals the correct approach to picking a winning case to make sure you don't lose this motion.

✓ The reason why the decision, People v. Lerma, can help you petition the court for funds even though the opinion says zilch about the court paying for a defense expert. 

✓ How the court can help you get deeper insight into your own case by agreeing to release some funds (Don't forget. Experts are also available for a consult. Think: DNA cases.)

Before You Go...

This sample motion specifically address an eyewitness expert witness. However, this sample motion is easily adaptable to your own needs. Add it to your collection now.

Download This Sample
Motion For Funds
(Now Available)

sample motion for fundsLerma plus Kinion equals a Motion For Funds For Eyewitness Expert Fees. Add this sample motion to your library right now. Thanks Joshua!

Add To My Library Now

Add To My Library Now.

Difference Between Grooming And Solicitation Of A Child

Jan 5, 2017 09:42

Description:

People v. Vara, 2016 IL App (2d) 140849 (December). Episode 277 (Duration 9:42)

There is a difference between grooming and solicitation charges, clever reading of the code goes nowhere.

You Just Can’t Ignore The Stench Of Weed…And An Accident

Jan 4, 2017 04:50

Description:

People v. Kavanaugh, 2016 IL App (3d) 150806 (December). Episode 276 (Duration 4:49)

Trial judge reversed for rescinding this SSS; you just can't ignore the traffic accident and the stench of weed. 

Multiple Officers In Your Bedroom…Part 2

Dec 28, 2016 12:33

Description:

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 274 (Duration 12:33)

Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

Multiple Officers In Your Bedroom In The Dead of Night Leads To Custodial Interrogation

Dec 28, 2016 09:36

Description:

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 273 (Duration 9:35)

Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

What To Tell Your Clients About Immigration

Dec 22, 2016 41:18

Description:

People v. Valdez, 2016 IL 119860 (September). Episode 272 (Duration 41:18).

The Illinois Supreme Court has reset the obligation on criminal lawyers to inform their clients about immigration consequences of convictions.
Two experienced immigration attorneys walk us through the decision.


Subscribe: iTunes | Google PlayAndroid | RSS | Direct Download

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Attorney David Richmond and Attorney Omar Salguero are primarily immigration law attorneys. This made them the perfect guests to help the criminal defense bar slog through these issues.

Download Your Copy
1-Page Immigration Checklist
(Now Available)

This 1-Page checklist helps you quickly spot the charges with succinct, clear, and explicit immigration consequences. (Hint: You better advise your client removal or deportation is required. )

Add To My Library Now

Add To My Library Now

 

David Richmond

David Richmond runs the Latino Immigration & Legal Center in Aurora, Illinois. He concentrates his practice on deportation, removal and other immigration related issues.  David can be reached by phone or email. He is always happy to help other attorneys with immigration questions.

LatinoImmigration911@yahoo.com (630) 897-5992 Omar A. Salguero-Duarte

Omar Salguero also focuses his law practice on immigration related cases. He has legal offices in DeKalb, Rockford and Aurora, Illinois. He too is always eager to answer questions from civilians and the defense bar.

omar@omarsalguerolaw.com (815) 446-0770 People v. Valdez

The Illinois Supreme Court has described certain criminal convictions that carry "succinct, clear, and explicit" immigration consequences. For these types of cases defense attorneys have an affirmative obligation to inform their non-citizen clients of dire immigration consequences. Dave and Omar help pinpoint these cases.

Additionally, they provide other tips and pointers for criminal lawyers defending non-citizens.

Important Links & Resources People v. Valdez, 2016 IL 119860 (September) Padilla v. Kentucky, 559 U.S. 356 (2010) 1-Page Immigration Checklist Immigrant Defense Project American Immigration Lawyers Association (AILA) - Crimmigration 101 crImmigration Blog by Professor Cesar C. Garcia-Hernandez Defending Immigrants Partnership Immigrant Legal Resource Center In This Episode

3:59 -  We begin with a refresher on Padilla v. Kentucky, 559 U.S. 356 (2010). Dave likes to think of Valdez as an evolution of Padilla. 

5:20 - This was the advice from the Padilla attorney that SCOTUS said was entirely ineffective. 

5:30 - Here is the number one difference between Padilla (where counsel was found ineffective) and Valdez (where counsel was not found ineffective). Note: Valdez still did something wrong, but he got away with one because the second prong of the Strickland standard was not met.

6:17 - A quick and easy  way to discover which criminal convictions carry "succinct, clear, and explicit" immigration consequences. These convictions mandate deportation and/or removal. (Hint: Make sure to download the checklist at top or bottom of this page.)

6:41 - You'll be shocked to hear what Dave says about the definition of CIMTs (crimes involving moral turpitude). Nonetheless, there are two critical components that persuade judges they may be looking at a CIMT.

7:36 - This is the final word on whether or not Illinois criminal defense attorneys also have to become experts in immigration law. 

8:19 - How the Valdez attorney kind of dropped the ball on this immigration consequences issue. Good thing the Strickland standard has two prongs. Also, we learn that the "generic" immigration admonishment looks like this. 

9:10 - Why crimes with "succinct, clear, and explicit" immigration consequences require a more definite admonishment from defense counsel. Defense counsel has to step-up in these situations and be more direct about disastrous immigration consequences attached to these types of crimes. (The Good News: the most damning of these charges have been listed and identified as the "aggravated felonies".)

10:28 - Where to find the aggravated felonies in the federal code. Please Note: These sections in the Immigration and Nationality Act and the United States Code are horribly written. Download the 1-Page checklist if you have not done so already. 

11:19 - Do not ignore the 1 year imprisonment requirement attached to some of these aggravated felonies. If the defendant is not sentenced to more than a year of prison for these charges then it's not an "aggravated felony".

11:44 - Did you know not all killings are considered aggravated felonies? Murder, yes. Manslaughter and reckless homicide, no.

11:56 - Don't even mess with drug cases. Even just a "pinch" of cocaine is a big problem for a non-citizen. However, there is a one time "weed" exception.

13:14- What about drug paraphernalia?

14:39 - What should we tell clients when they are charged with an aggravated felony.

15:09 - This is absolutely the very first thing you have to do when you are defending a non-citizen. The second thing is to get an immigration lawyer involved.

16:34 - WARNING: Don't make this common mistake when representing non-citizens. LPR (lawful permanent residents) are still in the immigration process. Even clients with legit papers have to worry about removability & inadmissibility and how a charge can effect these.

20:12 - Common concerns and issues with domestic violence cases. Why (a)(2) is better than (a)(1).

23:13 - Common problems with differred prosecutions, special probations, and second change programs. Why the Kane County Second Chance Program sucks for non-citizens. Why the DuPage and Cook County programs are way better...Is your home county program more like Kane or Cook?

26:23 - Common concerns and issues with DUI charges.

28:52 - The problem with credit for time served & disorderly conduct.

Before You Go...

The hard work has already been done for you. To get your hands on the 1-Page Immigration Checklist just click the orange button below.

Download Your Copy
1-Page Immigration Checklist
(Now Available)

This 1-Page checklist helps you quickly spot the charges with succinct, clear, and explicit immigration consequences. (Hint: You better advise your client removal or deportation is required. )

Add To My Library Now

Add To My Library Now

19 Minute Observation Period-Is Rescission Warranted?

Dec 20, 2016 04:38

Description:

People v. Cielak, 2016 IL App (2d) 150944 (December). Episode 271 (Duration 4:38)

Observation period lasted only 19 minutes rather than 20. Is rescission of SSS proper?

270.mp3

Dec 20, 2016 07:02

Description:

269.mp3

Dec 15, 2016 07:43

Description:

The Perils of Accomplice Testimony

Dec 13, 2016 08:34

Description:

People v. Hunt, 2016 IL App (2d) 140786 (November). Episode 268 (Duration 8:34)

Even the state called the accomplice “a liar” and warned the jury to question her credibility.

Facts

Accomplice with serious credibility issues implicates her boyfriend in a robbery. 

Defendant’s girlfriend said he did it, and he asked her to scope out the place before he went in with a mask to rob an apartment manager's office.

However, both the State and the defense argued that the girlfriend had serious credibility issues.

Accomplice Testimony

IPI 3.17 on accomplice testimony was not given.

The instruction’s purpose is to warn the jury that the witness might have a strong motivation to provide false testimony for the State in exchange for immunity or some other lenient treatment.

When accomplices testify, courts have found no valid reason for not requesting IPI Criminal 4th No. 3.17.

Accomplice testimony must be cautiously scrutinized, especially considering this case where her plea deal allowed her to avoid the possibility of at least 21 years imprisonment for armed robbery.

Accomplice testimony should be viewed with suspicion and accepted only with great caution, especially if the witness was promised leniency or immunity.

Corroboration, Corroboration, Corroboration

Here the testimony was corroborated by the victim's testimony and by physical evidence.

Items from the robbery were found in the girlfriend’s apartment and defendant had a ring taken taken from the robbery on his person when he was arrested.

Analysis

The evidence against defendant cannot be characterized as overwhelming, but considering her testimony, along with the corroborating evidence mentioned, a rational trier of fact could have determined that defendant committed the crime beyond a reasonable doubt.

While subject to careful scrutiny, the testimony of an accomplice, whether it is corroborated or uncorroborated, is sufficient to sustain a criminal conviction if it convinces the jury of the defendant’s guilt beyond a reasonable doubt.

Holding

Nonetheless, defendant cannot show that he was prejudiced by his counsel’s failure to tender the instruction on accomplice-witness testimony.

However, defendant has failed to sufficiently establish that the results of the trial would have been different had defense counsel tendered the accomplice-witness instruction. 

Deal With The Devil Ends In Reversal

Dec 13, 2016 15:19

Description:

People v. Casciaro, 2015 IL App (2d) 131291 (September). Episode 267 (Duration 15:19)

The State went out on a limb and charged defendant with a felony murder predicated on intimidation. The real risk was relying on, what has to be, this year’s “worst State’s witness.”

 

November 2016 Illinois Criminal Case List Features The Craziest Case Ever

Dec 8, 2016 25:29

Description:

This is the November 2016 Illinois criminal case list podcast rundown. Episode 266 (Duration 25:29) features what has to be the craziest case for 2016. 

November 2016 Illinois Criminal Case List
Subscribe: iTunes | Google PlayAndroid | RSS | Direct Download

Why read the cases when you can listen?

This is where we quickly and efficiently outline the most important opinions every criminal law practitioner must know about.

Subscribe to the podcast or push play above. Don't forget to download your copy of the case list to peruse the cases when you feel good and ready. Click below to save your PDF copy now.

Download Your Copy
November 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Now

Add To My Library Now Top 10 Criminal Cases For November 2016

Here's a quick snapshot of what's included in the podcast and the November case list:

1. People v. Burgund

The supernatural power of "discernment" coerces  a false confession. Can't make this stuff up. There's jealousy, sex, and a trip to the police station in this one. This has to be the craziest case ever. Oh yea, the legal issue deals with false confessions.  Go to 1:04

2. People v. Staake

Defendant was originally charged with Second Degree Murder. Then the State amended to First Degree Murder. This sneaky little one-two punch is entirely legal. Find out why.  Go to 2:53

3. People v. Bond

Right when you thought you knew everything about extraterritorial traffic stops (Cop from city A stops a car in City B) along comes this case.  Go to 4:12

4. People v. Flournoy

Discovery rules say the defense is entitled to all material information about a case possessed by the prosecution. Wrong! Turns out the surveillance privilege allows the state to hide some pretty important information. The facts can be found here...Go to 5:45

5. People v. Doolan

NEVER EVER NEVER EVER NEVER pick a fight with a man with an enlarged heart. This defendant and his buddies did not follow this advice, and it ended badly for them.  Go to 8:25

6. People v. Teper

Have you heard of the "overdose immunity" defense that can be used to prevent a drug possession charge? Well, it may not matter because this second district case may have just gutted the thing.  Go to 9:44

7. People v. Winchester

When extending your middle finger to an officer and saying “no policia” means lack of consent. When gripping the steering wheel tightly, leaning forward and extremely focused driving means nothing constitutionally significant. When staying in your car 5 minutes too long means...Go to 14:44

8. People v. Brantley

What exactly is the DUI rule when you are driving while taking prescription medication? Can they suspend your driver's license for that? Go to 17:17

9. People v. Hunt

How to win a conviction with absolutely the worst state's witness. She was so bad even the prosecution argued to the jury she was a liar. Go to 19:31

10. Special Bonus...Compare Hunt to People v. Casciaro

This case also featured a pretty bad state's witness, but it was released in September of 2015. Why was this conviction reversed where as the Hunt conviction was allowed? What was the key missing ingredient?  Go to 22:12

Before You Go...

The hard work has already been done for you. To get your hands on the November 2016 Illinois criminal case list just click the orange button below.

Download Your Copy
November 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Now

Add To My Library Now

Crazy Wife And Mother-In-Law Coerce A False Confession

Dec 6, 2016 22:49

Description:

eople v. Burgund, 2016 IL App (5th) 130119 (November). Episode 265 (Duration 22:49)

Predatory convictions and life sentence reversed because defendant was not allowed to use an expert witness on false confessions. 

When Is “Overdose Immunity” Applicable?

Dec 1, 2016 10:51

Description:

People v. Teper,2016 IL App (2d) 160063 (November). Episode 264 (Duration 10:51)

Defendant overdosed on heroin, and was slumped over in her car, can she be prosecuted?

Slumped Over

Police were notified that defendant was slumped over in her car.

They found her and administered narcan because it looked like a heroine overdose. When she came to they charged with class 4 possession for the items they find in the car with her.

Overdose Limited Immunity

Part of the Drug Act says that,

“A person who is experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section.”

720 ILCS 570/414(c).

However, section (e) says that,

“The limited immunity described in subsections (b) and (c) of this Section shall not be extended if law enforcement has reasonable suspicion or probable cause to detain, arrest, or search the person described in subsection (b) or (c) of this Section for criminal activity and the reasonable suspicion or probable cause is based on information obtained prior to or independent of the individual described in subsection (b) or (c) taking action to seek or obtain emergency medical assistance and not obtained as a direct result of the action of seeking or obtaining emergency medical assistance. Nothing in this Section is intended to interfere with or prevent the investigation, arrest, or prosecution of any person for the delivery or distribution of cannabis, methamphetamine or other controlled substances, drug-induced homicide, or any other crime.”

720 ILCS 570/414(e).

She Says She Can't Be Prosecuted

Defendant argued that she was not required to have sought medical assistance for herself, as it would be difficult for anyone experiencing an overdose to seek such assistance, and the statute uses the phrase “seek or otain”.

Both “seek” and “obtain” require affirmative action.

Defendant takes the position that she “obtained” emergency medical assistance when the officers first arrived at the scene, as opposed to when they administered Narcan.

The reviewing court said she was wrong.

State's A Little Wrong Too

The State said that to “seek” requires proactivity, and here defendant was unconscious, so she could not be said to have “sought” emergency medical attention.

However, the definition of “obtain” is “to gain or get (something)” (id.), and here defendant “got” emergency medical attention. The definition further states that the gaining or getting is “usually by effort,” but it does not state or imply that it must be by effort.

Accordingly, defendant “obtained” emergency medical assistance from the police officers, in that they injected her with Narcan and revived her. As such, contrary to the State’s argument, section 414(c) can cover situations in which individuals passively obtain emergency medical assistance.

Court Takes A Narrow View

Reviewing court said defendant got the emergency medical assistance only after the police viewed her, confirmed that she was unresponsive, and saw suspected drugs and drug paraphernalia in the car.

At that point, they believed that she was suffering from a drug overdose, and they provided emergency medical assistance in the form of Narcan.

In other words, the officers obtained evidence of defendant’s drug use and possession by viewing objects in plain sight in the car when they arrived, and they did not acquire the evidence “as a result of” providing defendant with emergency medical assistance.

They said, the officers provided emergency medical assistance as a result of viewing evidence of drug use and possession, not the reverse.

Really? That's a real narrow view of things.

Holding

For immunity to apply under section 414(c), the evidence of drug possession must be “acquired as a result of the person seeking or obtaining emergency medical assistance,” which did not occur here.

And even if section 414(c) initially provided defendant with immunity, section 414(e) prohibited the application of that immunity. Because before rendering emergency medical assistance in the form of the Narcan injection, the officers here had probable cause to arrest defendant for unlawful possession of a controlled substance, because they viewed defendant’s condition and saw suspected drugs and drug paraphernalia.

Stated differently, the officers’ probable cause was based on information they acquired before defendant obtained emergency medical assistance from them, and the evidence was not a direct result of defendant obtaining emergency medical assistance. See 720 ILCS 570/414(e).

Don’t Beat-Up A Person With An Enlarged Heart

Nov 30, 2016 06:47

Description:

People v. Doolan, 2016 IL App (1st) 141780 (November). Episode 263 (Duration 6:47)

Defendant is accountable for first degree murder because him and his buddies decided to start a fight with a victim with an enlarged heart.

262.mp3

Nov 29, 2016 08:00

Description:

October 2016 Illinois Criminal Case List - The Quick Rundown That Keeps You Updated

Nov 23, 2016 16:24

Description:

Podcast Episode 261 (Duration 16:23) of the Criminal Nuggets Podcast features a quick rundown of the October 2016 Illinois criminal case list. 18 published opinions were released for your perusing. This is where well informed litigators get their updates.

October 2016 Illinois criminal case list


Subscribe: iTunes | Google PlayAndroid | RSS | Direct Download

Listen to the audio round-up in under 20 minutes or download your copy of the case list to peruse the cases when you feel good and ready. Click below to save your PDF copy of the cases now.

Download Your Copy
October 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Now

Download This Case List Now.

Here is where you easily get caught up with the top October cases for 2016. Here's a quick snapshot of what you missed:

1. People v. Jones

How you can treat juvenile adjudications just like criminal convictions without getting into Aprendi problems.  (Go to 0:31)

2. People v. Wall

Outrageous blatant lie told by police to coerce defendant into signing this "consent to search".  (Go to 2:04)

3. People v. Jones

Prosecutor kept using the same word in his opening and managed to inflame the passions and prejudice of the jury. Retrial ordered.  (Go to 3:33)

4. People v. Duran

Traffic stop begins with defendant being pulled from the car and handcuffed. Court says sometimes that's a reasonable thing to do.  (Go to 4:08)

5. In re A.S.

Discover how this judge completely abdicated his one and only responsibility during this Batson challenge. As a byproduct, defense attorneys get this nice little case to cite in the future.  (Go to 5:26)

6. People v. Swift

Defendant smacks his car into a trailer truck pulled over to the side of the road. He has some weed in his system. Crime or no crime?  (Go to 6:41)

7. People v. Taylor

Judge completely misreads this sentencing provision. Defendant entitled to some serious mitigation.  (Go to 8:18)

8. People v. Jackson

Imagine a guy orders 10 clowns from one mini-car and drives away with the mini-car? How many vehicular hijackings just occurred? 10 or 1?  (Go to 10:30)

9. People v. Sandifer

Deceased rape victims get to benefit from the protections offered by rape shield statutes. Kind of slimey to argue that they don't.  (Go to 11:20)

10. People v. Dominguez

Counsel didn't quite tell defendant he would get deported with a conviction. But reviewing court ain't buying defendant didn't know he was  screwed.  (Go to 11:59) 

11. People v. Dorsey

Defendant attempts a "Point Break" type police escape. He manages to totally destroy an apartment, scare the hell out a lady and her kids, and - oh yea - get caught.  (Go to 13:17 )

Before You Go...

The hard work has already been done for you. To get your hands on the October 2016 Illinois criminal case list just click the orange button below.

Download Your Copy
October 2016 Case List
(Now Available)

Download the most recent Illinois monthly case list. Give yourself a head start and stay current with the cases. Download this clickable quick summary and get up to speed in no time.

Add To My Library Now

Download This Case List Now.

Originally Charged With Second Degree Murder, Then Amended To First Degree Murder, Problem?

Nov 22, 2016 09:52

Description:

People v. Staake, 2016 IL App (4th) 140638 (November). Episode 260 (Duration 9:52)

Second degree murder is not a lesser included offense of first degree murder; it is a lesser mitigated offense of first degree murder.

Background

Defendant is originally charged with second degree murder for stabbing a carnival worker who had punched him in the face.

5 months later the state dropped the second degree murder and charged defendant with an intentional first degree murder.

One month after that they added a second count of strong probability of death or great bodily harm count.

Speedy & Joinder Issues

The Williams rule holds that if the initial and subsequent charges filed against the defendant are subject to compulsory joinder, delays attributable to the defendant on the initial charges are not attributable to the defendant on the subsequent charges. See People v. Williams, 204 Ill. 2d 191 (2003).

The rule only applies when the subsequent charge filed by the State is “new and additional,” thereby hindering the defendant’s ability to prepare for trial on the subsequent charge.

Issue Then…

The “critical point” is whether the original indictment gave defendant adequate notice to prepare his defense to the subsequent charge.

Murder v. Second Degree Murder

The elements of the crimes of first degree murder and second degree murder are the same.

In other words, to convict a defendant of either first degree murder or second degree murder, the State must prove beyond a reasonable doubt the elements which constitute the crime of first degree murder.

Only after the trier of fact has concluded that the State has done so may the trier of fact then consider whether a mitigating factor is present so as to reduce the defendant’s conviction from first degree murder to second degree murder.

What is Second Degree Murder?

Accordingly, when the State chooses to charge a defendant with second degree murder, all it is doing is conceding the existence of a mitigating factor, thereby removing from defendant the burden of proving a mitigating factors existence.

When the State charges a defendant with second degree murder, it must still prove all of the elements that underlie the offense of first degree murder. However, if the jury finds that the State has proved those elements beyond a reasonable doubt, the verdict of the jury would be that the defendant is guilty of second degree murder, not first degree murder.

This result occurs because the State had effectively conceded the existence of the mitigating factor by charging the defendant only with second degree murder, not first degree murder.

Therefore, first degree murder is not a “new and additional” charge to second degree murder.

That is because the criminal behavior the State alleges the defendant engaged in regarding both charges—that is, first degree murder and second degree murder—is the same. The only difference between the two charges is the existence of a mitigating factor.

If the State initially decides to concede the existence of a mitigating factor by charging the defendant with second degree murder and then changes its position by charging first degree murder, the only change is that the State no longer concedes the existence of a mitigating factor.

That does not constitute a “new and additional” charge.

This Case

All of this matters because after the amendment to the charges in this case there was no joinder, speedy or preliminary hearing problem.

Defendant could claim no credible surprise or inability to properly defend the charges.

What About New Preliminary Hearing?

Also, note that the requirement for a preliminary hearing under article I, Section 7 of our constitution and 725 ILCS 5/111-2(e) only requires probable cause for any for at least one felony charged not all of the felonies.

This means that once a trial court, after conducting a preliminary hearing, has determined that probable cause exists for any felony offense with which the defendant is charged, that is all the trial court need determine before concluding that (1) the State has met its burden at the preliminary hearing and (2) the defendant should be held for trial on all of the charges then pending against him.

259.mp3

Nov 22, 2016 11:44

Description:

Death, Tragedy & An Attorney Who Couldn't Stand It Anymore

Nov 16, 2016 29:55

Description:


A behind the scenes look at the legislative process including the good, the bad, and the ugly. 

Episode 258 (Duration 29:55).  Today we get a little personal, as Jeff explains his motivation for getting involved in lawmaking.

Illinois Legislative Process

Subscribe: iTunes | Google PlayAndroid | RSS | Direct Download

We last spoke to Jeffrey Hall in Episode 251 where he gave us an update to the Illinois Cannabis / DUI decriminalization law.

Jeffrey Hall

Jeffrey R. Hall is a former Assistant State’s Attorney from Tazewell County, Illinois. He has been practicing criminal law since 2004. Currently, Jeff continues to concentrate his practice on criminal law and driver’s license issues. He is a partner of Hall, Rustom & Fritz, LLC. 

The Legislative Process

Why would any rationally thinking attorney ever get involved in the legislative process? It's political and messy, yet Jeff dove right in. Here's what we talked about:

Why Jeff spent years working on reforming the DUI-Cannabis law What it means to seek justice How Arizona (that's right crazy Arizona) had a more logical law Examples of prosecutorial discretion run-a-muck What motivations and the deep-seated reasons we have for some laws Krystin Rennie Story

Jeff began talking about one of his own cases that involved death and tragedy. This case involved a 16 year old driver who misjudged the traffic in a construction zone.

Her car caused an accident with a biker. The biker's wife died in the accident, and the biker was seriously injured. Krystin had a cannabis derivative in her blood, and was found guilty (under the old law) of aggravated driving while under the influence of cannabis. 

In many ways, this case was the final straw that pushed Jeff to seek relief in Springfield.

In Episode 251...

The last time we talked to Jeff, he talked about some of the changes he saw happening in the courts after the new law he helped pass became effective. You can listen to that discussion by clicking this sentence and download the copy of the motion Jeff uses to help ensure his clients can benefit from the new possession of cannabis provisions.

You can download the motion below.

Download Jeff's Sample
"Motion For Admonishments...And Notice Of Election".

Download this sample motion Jeff uses to ensure his clients charged with possession of cannabis before the law change are able to benefit from the change in the law.


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Download This Sample Motion Now! Important Links Krystin Rennie Story IDOC Inmate R88453 - RENNIE, KRYSTIN People v. Rennie Attorney Jeffrey R. Hall Jeff Hall’s Blog Hall, Rustom & Fritz, Inc. "Extraordinary Circumstances" in DUI Death Cases People v. Martin, 2011 IL 109102 (April) The Scott Shirey Case Why You Should Listen

✓ Out of the gate you get to hear the gripping tale of Krystin Rennie. A wife is killed and a husband loses his arm. A stone sober teenager is charged, and a lawyer finally has enough. (Go to 2:04)

✓ Discover that "extraordinary circumstances" in DUI death cases is as elusive a concept as the North American Yetti. (Got to 4:46)

✓ An absurd example of criminal liability that existed under the old law. (Go to 5:59)

✓ Was there ever a logical basis to criminalize having cannabis substrates in your body while driving? Did Anti-DUI groups take things too far? Was People v. Martin, 2011 IL 109102 (April) the worst Illinois Supreme court decision of the modern era?(Go to 8:00)

✓ Under the old paradigm having a culpable mental state, an actus rea, went right out the window. (Go to 8:30)

✓ How 33 other states including Arizona thought strict liability for driving with cannabis derivatives in your body, without evidence of any intoxication was absurd on its face. (Go to 10:20)

✓ Why you should never believe supporters of harsh criminal laws when they tell you we can rely on a prosecutor's ethical obligation to seek justice and depend on their wise application of prosecutorial discretion. (Go to 9:50)

✓ The truth about the Scott Shirey case. (Go to 12:06)

✓ How we almost had a DUI petty offense called Diving While Drugs In Your System. It would have been punishable by fine only (no jail), and listed under 625 ILCS 5/11-501(a)(8). But don't look there now, you won't find it. Jeff explains what the heck happened to that idea. (Go to 15:01)

✓ Cannabis can kill. Jeff explains exactly how. (Go to 17:14)

✓ Discover the reason why we ended up with a strict liability law requiring a threshold amount of THC in the body. Furthermore, if everyone agreed to a 15 ng/ml THC threshold, and the bill passed that way, how did we end up with a law requiring either 5 nanograms or more of THC per milliliter of whole blood or 10 nanograms or more of THC per milliliter of other bodily substance? (Go to 18:07)

✓ Did you know that in Colorado they also have a 10 ng/ml threshold. However, betcha didn't know it's not exactly strict liability there. It's merely a presumption that is rebuttable by the defense. It goes something like this: "Yes, I had that much THC in m blood, but here is the evidence that demonstrates I was not intoxicated." (Go to 21:01)

✓ The weird interplay of politics and law making that results in the original sponsors of a bill, in fact its strongest proponents, in the end not supporting their own bill. (Go to 23:10)

✓ We may all have to rethink what it means for prosecutors to seek justice. Maybe, sometimes prosecutorial discretion means not prosecuting some cases. Hmmm? Naw, that's crazy! (23:32-26:30)

Prosecutor Made The Statements But Trial Judge Gets Slapped Around

Nov 15, 2016 07:00

Description:

People v. Jones, 2016 IL App (1st) 141008 (October). Episode 257 (Duration 6:59)

Big problems with this prosecutor's opening statement. 

What They Said

The State began its opening statement as follows:

“The greatest danger that a police officer can face during his tour of duty is a gun and a criminal who’s willing to use that gun to shoot and kill that police officer. Ladies and gentlemen, each of your juries has sitting before you one such criminal…“[The police] learned that behind that door were two cold-blooded criminals who had reasons to keep those police out…[Y]ou must remember the criminal controls the crime scene. These two defendants were in that house for quite some time with that evidence before they ultimately came out.”

And finally, the State concluded:

“The law recognizes that what one criminal may not be brave enough to do alone, two criminals just might be. So it’s as if defendant Jones had his finger on that trigger as did defendant Thomas. Criminals work together and they are equally responsible for crimes they commit.”

Defense counsel objected, the judge told to the jury to disregard it, and the prosecutor just kept calling them “criminals.”

Derogatory Comments

Courts have decried the use of derogatory and pejorative terms used to describe the defendant.

Comments intending only to arouse the prejudice and passion of the jury are improper.

Is Reversal Required?

Reversal is required only if the “comments engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from them.

Stated differently, if the jury could have reached a contrary verdict had the improper remarks not been made, or the reviewing court cannot say that the prosecutor’s improper remarks did not contribute to the defendant’s conviction, a new trial should be granted.

Analysis

The reviewing court said the State’s opening statement was premised on its characterization of Jones as a “cold blooded criminal” facing off against police officers.

Defendant was in a home about to be searched by police when the codefendant shot a shotgun at the door injuring 3 officers.

This argument, which did not belong in an opening statement under any circumstances, conjured a powerful image calculated to invoke an emotional response.

No Convictions

Certainly, the characterization had no basis in fact, given that prior to this case, Jones had never been convicted of a crime.

Thus, there was no basis for the State’s references to Jones as a criminal other than to inflame the passions of the jury.

Repetition

Additionally, the State’s repetition of the “criminal” pejorative throughout its opening statement effectively nullified the effect of the court’s instruction to disregard the State’s characterization of defendant as well as its admonishment that opening statements were not evidence.

The Evidence Not Overwhelming

Also relevant to the prejudice inquiry is the fact that the State’s evidence in this case, while undoubtedly sufficient to convict, was not overwhelming.

The only evidence that Jones was involved in the shooting were the statements of other people in the house to the police and the grand jury that Jones told his codefendant to shoot.

These statements were disavowed at trial.

This relatively thin evidence makes it more likely that the jury was over-persuaded by the State’s description of Jones as a criminal, and therefore a bad person deserving of punishment.

Prosecutors Been Warned

The Illinois high court has warned that threats of reversal, and words of condemnation and disapproval have been less than effective in curbing prosecutorial misconduct.

This reviewing court had no problem reversing, where it felt the State’s misconduct required it to do more than merely express disapproval.

Holding

Reversed and remanded but not before the original trial judge was bench slapped and removed from the case for being biased and without dignity nor courtesy at the sentencing hearing.

The trial court really took issue with defendant's statements that he was worried about his kids. The trial court then made derisive comments intended to malign the entire class of criminal who has kids.

How Judge Steigmann Really Feels About Impeachment, Prior Inconsistent Statements, And 725 ILCS 5/115-10.1

Nov 10, 2016 47:17

Description:

The most Honorable Judge Robert Steigmann of the Fourth Appellate District provides valuable insight and lessons on proper impeachment, prior inconsistent statements, and 725 ILCS 5/115-10.1.

Episode 256 (Duration 47:16). Prepare for valuable insight, trial lessons, and behind the scenes action from one of Illinois's most respected judges.

Judge Steigmann Prior Inconsistent Statements

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Back To Batson Basics

Nov 8, 2016 13:57

Description:

In re A.S., 2016 IL App (1st) 161259 (October). Episode 255 (Duration 12:42)

Because the stage-two and stage-three Batson hearing in this case may have been influenced by the trial court’s demonstrably incorrect view of the law remand for further proceedings was ordered

In this jury selection the state used 4 of its 5 peremptory challenges to strike African Americans.

Facts

It explained…

One was a social worker One lady had her house surrounded by police when they arrested her son for robbery, Another lady was a social worker who worked with homeless people from East Garfield Park and she had an attempted robbery from the early 1960's and a criminal trespass in the 70's, and finally The last lady was struck because she did not disclose a 39 year old theft conviction that she said she forgot about.

Defense counsel pointed out there were white social workers and white jurors with criminal backgrounds that were not stricken by the State.

They tried to distinguish between the seriousness of the offenses.

3-Step Process

Batson’s three-step process for addressing alleged discriminatory use of peremptory challenges is well-settled.

First, it is the defendant’s burden to make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.

Second, once a defendant makes out a prima facie case, the burden shifts to the prosecution to articulate a race-neutral reason for excluding each dismissed juror, which “need not rise to the level justifying exercise of a challenge for cause.” Also at the second stage, defendant is afforded the opportunity to argue that the State’s proffered reasons for striking particular members of the venire are pretextual.

At the third stage, the trial court makes the ultimate determination of whether the party opposing the challenge has made the required showing of purposeful discrimination. At this stage, it is the trial court’s responsibility to undertake a sincere and reasoned attempt to evaluate the prosecutor’s explanations in light of the circumstances of the case. In addition to considering the stated reasons offered by the prosecutor, the court evaluates the prosecutor’s demeanor, which reviewing courts have recognized entails credibility determinations.

Prima Facie Case

The question of whether or not a prima facie case of discrimination was even raised is an interesting one here.

The record does not reflect that the court relied on anything other than the number of peremptories used by the State against prospective black jurors, a factor that, while relevant, is not, standing alone, sufficient to make out a prima facie Batson violation.

The law is clear that the number of black members of venire peremptorily challenged, without more, not sufficient to establish prima facie case of discrimination.

A pattern of discrimination is not demonstrated anytime a party strikes more than one juror of any race.

Evidence of a pattern of discriminatory strikes is one factor a court should consider when determining whether the party challenging the peremptory strike has established a prima facie case under Batson, it is not a dispositive factor.

However, it is also true that exclusion of just one venireperson on account of race is unconstitutional and requires reversal of the conviction. The question comes down to whether or not you have the facts to prove discrimination.

Here are the relevant factors a trial court should consider in determining whether a prima facie Batson violation has been established:

(1) The racial identity between the party exercising the peremptory challenge and the excluded venirepersons; 
(2) A pattern of strikes against African-American venirepersons; 
(3) Disproportionate use of peremptory challenges against African American venirepersons; 
(4) The level of African-American representation in the venire as compared to the jury; 
(5) The prosecutor’s questions and statements of the challenging party during voir dire examination and while exercising peremptory challenges; 
(6) Whether the excluded African-American venirepersons were a heterogeneous group sharing race as their only common characteristic; 
(7) The race of the defendant, victim, and witnesses; and 
(8) The unchallenged presence of jurors of that race on the seated jury is a factor properly considered and tends to weaken the basis for a prima facie case of discrimination.

The reviewing court found there was clearly a pattern of strikes by the prosecution against black members of the venire raising a prima facie case for a violation. The State exercised three peremptories in a row against prospective black jurors on the first day of jury selection, resulting in the dismissal of every black member of the venire questioned thus far.

Stage Two: Race Neutral Reasons

The state asked very little questions of them. It appeared that these three members of the venire were a heterogeneous group sharing race as their only common characteristic. Defendant was black and the victim of the residential burglary was white.

Stage Three: Judge's Evaluation

The problem here is that it does not appear that the trial court conducted a fair evaluation of the State's proffered reasons for excluding the jury members.

This evaluation must be done in the context of the jury selection process and must take into account the State's demeanor and credibility for their stated professor.

The court simply did not further evaluate the circumstances before declaring the State’s reason race-neutral. In effect, the court terminated the Batsonprocess at stage two.

Holding

More troubling was the fact that the trial court appeared to embellish the facts while it defended the State’s exercise of a peremptory challenges. This was not its job to do. It was not appropriate for the court itself to establish some rational basis for the State of Illinois not to want this person.

Because the record in this case revealed that the trial court usurped the State’s role at stage two and failed to conduct a stage three Batson hearing remand for further proceedings is required.

Reversed, but a new trial was not ordered. Instead the trial judge must complete the state 2 and stage 3 requirements of Batson.

See Also People v. Williams, 2015 IL App (1st) 131103 (November 2015) People v. Shaw, 2016 IL App (4th) 150444 (April) Foster v. Chatman, SCOTUS No. 14–8349

One Car Means One Vehicular Hijacking No Matter How Many Victims

Nov 8, 2016 04:16

Description:

People v. Jackson, 2016 IL App (1st) 133823 (October). Episode 254 (Duration 4:16)

One hijacked car means one aggravated vehicular hijacking even though there were two victims.

Unique Attempted Murder Mitigation

Nov 8, 2016 06:58

Description:

People v. Taylor, 2016 IL App (1st) 141251 (October). Episode 253 (Duration 6:57)

Remanded for new sentencing to see if a class 1, sudden and intense passion resulting from serious provocation, sentencing is appropriate for this attempted murder conviction.

Facts

Defendant was convicted of attempted 1st degree murder for shooting his girlfriend 3 times after she sideswiped a car his child was in.

Sentencing

Defendant was sentenced as a class X.

Attempt Murder Mitigation

However, at sentencing and on appeal he argued that he should be sentenced as a Class 1 offender pursuant to section 8-4(c)(1)(E) of the Criminal Code, which reads:

“[I]f the defendant proves by a preponderance of the evidence at sentencing that, at the time of the attempted murder, he or she was acting under a sudden and intense passion resulting from serious provocation by the individual whom the defendant endeavored to kill, or another, and, had the individual the defendant endeavored to kill died, the defendant would have negligently or accidentally caused that death, then the sentence for the attempted murder is the sentence for a Class 1 felony.”

720 ILCS 5/8-4(c)(1)(E).

“Accidental or Negligent”?

The trial court found this section inapplicable because it did not believe that had the victim died, Taylor's conduct could have been described as accidental or negligent.

In other words, the trial court understood the statute to require Defendant to prove that he intentionally attempted to kill due to serious provocation, but that, had he been successful, the killing would have been deemed negligent or accidental.

This interpretation is incorrect.

Analysis

Here, the statutory language clearly addresses two separate scenarios.

First, it addresses the scenario where the defendant attempts to kill the one who provoked him, and second, it addresses the “transferred intent” scenario where the defendant specifically intends to kill his provoker, but instead takes a substantial step towards killing another, whose death, had it occurred, would have been deemed negligent or accidental.

The trial court's interpretation would make it impossible for a defendant convicted of attempted murder to obtain a reduction in classification based on provocation and render the statute meaningless.

Attempted murder requires a showing that a defendant had the specific intent to kill, which is fundamentally incompatible with the statutory language providing that if the defendant's victim died, the death would have been deemed negligent or accidental.

Taylor's interpretation of the statute as referring both to the situation where the defendant attempts to kill his provoker as well as the separate situation where the defendant negligently or accidentally acts against another in his attempt to kill his provoker better conforms to legislative intent.

Holding

Defendant's actions stemmed from witnessing the victim drive her car at a speed of 30 to 35 miles per hour into the car carrying his daughter. He was indeed acting under a sudden and intense passion when he shot her. File was remanded for the trial court to determine if defendant was act sufficiently provocated under the law.

Handcuffing During This Traffic Stop Justified (It Was Really A Drug Investigation)

Nov 5, 2016 08:54

Description:

People v. Duran, 2016 IL App (1st) 152678 (October). Episode 252 (Duration 8:54)

This traffic stop from its inception was a drug investigation, reasonableness has to take that into account.

Jeffrey Hall On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law

Nov 4, 2016 42:01

Description:


Illinois criminal law attorney Jeffrey Hall from Peoria helped draft the new cannabis related DUI subsection that appeared in the Illinois Cannabis decriminalization law. (Or should I say, "Illinois's version of decriminalization"?)

In Episode 251 (Duration 42:00), Jeff lets us know what is happening with this new law since it passed.

Illinois Cannabis Decriminalization Law with Jeffrey Hall


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Police Tell A Little Lie To Encourage Signing The Consent To Search

Nov 3, 2016 05:48

Description:

People v. Wall, 2016 IL App (5th) 140596 (October). Episode 250 (Duration 5:47)

Police lied to him about a break-in at his home, then tell him to sign the consent form or he'll get arrested.

Illinois Case Law Updates for January 2015 | Top Criminal Law Cases

Nov 1, 2016 10:40

Description:

Illinois Case Law Updates for January 2015. Here are the top Illinois criminal law decisions. Fast and convenient summary of recent Illinois criminal court cases. The Appellate Courts and Illinois Supreme Court had a busy-busy January. Click Here to Download a One-Page PDF of January's Top Cases!    Get Case List Now!

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Sentencing [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. Sup. Ct.[/caption]

Remanded for resentencing on an old gun conviction before he gun add-ons were fixed.

Public Act 95-688, enacted shortly after Hauschild, amended the armed violence statute so that robbery can no longer serve as a predicate offense for armed violence. But this law did not apply retroactively to cover Defendant's charges. Case was remanded for resentencing so that the parties' expectations can be met as much as possible. People v. Taylor

Search & Seizure [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 4th Dist.[/caption]

 

Police need a warrant to bring a drug dog to an apartment front door.

The State argued that Florida v. Harris did not require reversal because that case involved a single story residential home. This court said a home also includes an apartment and Harris is directly on point. People v. Burns

 

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

DUI arrest was improper when the officer could not explain why he pulled his gun out and aimed it at the lady.

Defendant was seized without probable cause or reasonable suspicion when the officer approached the driver’s door with his gun drawn. Subsequent field sobriety tests and officer’s observations were suppressed. People v. Bozarth  

Sexual Assault [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

Remember to check the date of offense on sexual assault cases; the gun add-on may have been void at the time of the crime.

The 15 year additional sentence for the firearm enhancement is stricken because this crime occurred in 2006 when that penalty violated the proportionate penalties clause of the Illinois Constitution. Defendant will do 12 years not 12 plus 15. People v. Lampkins  

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

Conviction for aggravated kidnapping does not have to be vacated because the kidnapping was not incidental to the aggravated criminal sexual assault that occurred.

The Levy-Lombardi doctrine says a defendant cannot be convicted of kidnapping where the asportation (carries from one place to another) or confinement of the victim was merely incidental to anothe crime such as robbery, rapr or murder. A court must consider the following factors to determine whether the asportation amounts to the independent crime of kidnapping: "(1) the duration of the asportation or detention; (2) whether the asportation or detention occurred during the commission of a separate offense; (3) whether the asportation or detention is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense." People v. Johnson  

Evidence [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

Defendant answered questions in Spanish during his confession. Are the tranlsated transcripts substantive evidence?

Generally, when transcripts of an audio recording are provided the transcripts are not substantive evidence. The recording itself is the evidence and the transcripts are only provided as an aid. However, when the transcripts also translate a foreign language into English then the transcripts do become substantive evidence if it has been established that the translation is a fair and accurate. The defense is always free to challenge any translation with their own translator in court when they see fit. People v. Betance-Lopez

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Sup. Ct.[/caption]

 

Trial counsel was ineffective for failing to object to hearsay evidence that Defendant used a bat to hit the murder victim.

Testifying witness said he could not remember what the defendant told him about the murder. The witness’s recorded interview with police is then played. Witness tells police Defendant told him he hit the victim with a bat 30 times. Section 115-10.1 requires that witness have personal knowledge of the crime being described and not just personal knowledge of the conversation about the crime. Supreme Court settled this issue apparently already settled by the appellate courts. Note: the inconsistent statement could not have been impeached by the State either because his testimony did not affirmatively damage the State’s case. See People v. Cruz, 162 Ill. 2d 314, 359-60 (1994). People v. Simpson    

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

 

Trial court erred in admitting highly prejudicial evidence of other crimes and failing to comply with Illinois Supreme Court Rule 431(b), conviction for stalking is reversed.

Other-crimes evidence is objectionable because a jury, upon hearing this evidence, might convict the defendant merely because it feels that the defendant is a bad person who deserves punishment. Even where other-crimes evidence is relevant for a permissible purpose, the circuit court must weigh the prejudicial effect of admitting the other-crimes evidence against its probative value. When facts concerning the uncharged criminal conduct are part of a continuing narrative of the charged criminal conduct, they do not concern separate, distinct, and unconnected crimes. The fight with the victim’s boyfriend was not connected to the stalking charge. The fight occurred 2 hours later and no contact with the stalking victim occurred. People v. McGee   

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 4th Dist.[/caption]

 

Does the silent witness theory of video evidence prevent a narration of what has been recorded including the identity of the defendant?

A casino security employee testified that Defendant and a co-defendant were following the victim in the casino and followed him outside where the victim was robbed at gun-point. The video evidence was properly authenticated under the silent witness theory. Even though the security employee did not personally observe the video that was captured, he could still narrate what was recorded (including the identity of Defendant) because the security employee had some basis for concluding the witness is more likely to correctly identify the defendant from the videotape than the jury. In other words, a lay witness may testify regarding the identity of a person depicted in a surveillance video if there is some basis for concluding the witness is more likely to correctly identify the individual from the videotape than is the jury. The Fifth District has gone another way on this issue. They require a witness's appearance to be different at trial or if the image was unclear. People v. Mister  

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

 

Trial juidge errored in admitting photographs of drug messages found near the drugs as other crimes evidence against the defendant; drug conviction reversed. 

Drugs, drug paraphernalia and several phones with drug messages are recovered after a search warrant is executed. Defendant and five other adults were present. For the purpose of establishing a proper foundation for admissibility, text messages are treated like any other form of documentary evidence. Here, the only evidence presented by the State to authenticate the text messages was the fact that the cell phone was found in the same house as defendant, albeit in a drawer in a common area, and the fact that some of the messages referred to, or were directed at, a person named "Charles." This was not sufficiet authentication. There were no cell phone records to indicate that the cell phone belonged to or had been used by defendant or anyone else at the residence; there was no eyewitness testimony to indicate that the cell phone belonged to or had been used by defendant or that the messages were being sent to defendant; and there were no identifying marks on the cell phone itself or on the cell phone's display screen to indicate that cell phone belonged to or had been used by defendant (other than possibly the references to "Charles" in the text messages).  People v. Watkins   

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 4th Dist.[/caption]

 

Police mixes all the drugs in one bag and send it to the lab that way.

Trial counsel is ineffective for not figuring out how the testing was done before trial and before he agreed to stipulate to the weight and testing of the drugs. When counsel stipulated he threw away a huge issue for the defendant. When the drugs were mixed it became impossible for the state to prove how much cocaine there really was. People v. Coleman  

Juvenile [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist .[/caption]

 

Minor cannot appeal his order of supervision because it is not a final judgement.

Illinois Supreme Court rules governing juvenile delinquency proceedings do not provide for appellate review of an interlocutory order in a case that has been continued under supervision. Appeal dismissed. In re Henry B.  

 

[caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

 

Unlawful consumption of alcohol by a minor conviction is reversed because the burden that the kid is not drinking under the supervision of a parent is on the State

Officer responds to complaints of a party. She walks around back and onto a deck where there is some drinking going on. Defendant immediately tells her to “Get off my property. You don’t have a warrant to be here.” Ouch. Police established that the defendant was drinking while his mother was present. They did not establish that the mother was not supervising the drinking. People v. Cannon  

Statute of Limitations [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Sup. Ct.[/caption]

 

Discovery of a financial crimes involves more than just being told by the police that Defendant wrote some checks out; at best this merely raised a suspicion that a crime occurred.

Extended statute of limitations period authorizes a charge one year after a victim discovers the crime or within a year of the prosecutor becoming aware. See 720 ILCS 5/3-6(a)(2). However, section 3-6(a)(2) requires more than mere suspicion of a crime, or even awareness of a loss. Rather, activation of section 3-6(a)(2) requires awareness or knowledge that there has been a violation of a penal statute. The victim in this case did not discover the offense prior to the Adams County State’s Attorney becoming aware of it. People v. Chenoweth  

Sentencing [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

 

Convictions for armed robbery and aggravated unlawful restraint do violate one-act, one-crime principles in this case.

This is nice little example demonstrating the King concepts. The robbers order to lie down on the ground and give up their money was one inherent act. It all was one thing. State unsuccessful tried to argue that ordering them to count to 50 after they got the money was a separate act. No it wasn’t. People v. McWilliams  

Prosecutorial Misconduct [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

 

There may be something here.

Defendant has an affidavit from the then 11 year old witness who now is saying (a) that he was related to one of the prosecutors on the case he testified in and (b) someone told him to lie about seeing the victim with a gun. This is proceeding to a second stage post conviction. People v. Haynes  

DUI [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

 

The granting of this petition to rescind statutory summary suspension is reversed, suspension is back in effect.

Defendant filed the petition because he did not receive notice of the suspension from the SOS until after the suspension was in effect. He argued this denied him a chance to contest it in court. The trial court agreed saying this was a violation of 625 ILCS 5/11-501.1(g). The appellate court said Defendant received proper notice from the police on the day of his arrest and had more than ample opportunity to challenge the suspension in court before it became active. People v. Morales  

Jury Instructions [caption id="attachment_1466" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

 

Defendant won his self defense case in his murder and attempted murder trial; but the self defense instruction was not given on one count!

Defendant shot and killed one man and wounded another. It was ineffective assistance of counsel for the trial attorney to allow this missing self-defense instruction on the aggravated discharge count. Here, three of the four charged offenses included a self-defense instruction, but the remaining aggravated discharge instructions did not, a rational juror employing elementary rules of logic could—in fact, should—find that omission to be meaningful. This was also plain error. Remanded for new trial. People v. Getter  

Illinois Criminal Case List for February 2015 | Download Available

Nov 1, 2016 13:22

Description:



Illinois Case Law Updates for February 2015 - Fast and convenient summary of recent Illinois criminal court cases created just for you. Click Here to Access Your February Illinois Case List Now!   Get Criminal Case List Now! This Case List PDF Download is made available for the busy practitioner.

Subscribe: iTunes | Stitcher | RSS

Illinois Case Law Updates February 2015The Illinois Supreme Court had some things to say about the criminal law. Remember, the case list I created for you features a one page clickable summary of the top February cases AND a short summary of every Februay case.

Also, make sure to subscribe to the podcast and download the audio round-up for February 2015.

Illinos Supreme Court SENTENCING Decisions [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Il. Sup. Ct.[/caption]

This never happens. Illinois Supreme court upholds trial courts ruling that AUUW (the only non-probationable class 4 felony known to man) is unconstitutional. Go to case.

People v. Aguilar, 2013 IL 112116, is further explained and its limited. Minors may definitely be banned from possessing guns. A FOID requirement is also legal. However, the non-probationable status of 24-1.6(d)(2) mandating prison for 18 year olds or older is void because it references sections that are clearly unconstitutional under Aguilar. Defendant’s misdemeanor conviction stands.  People v. Mosley

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Il. Sup. Ct.[/caption]

Illinois Supreme Court says that two separate convictions (for possession of the gun and the bullets in the gun) are proper under one-act, one-crime principles when a Defendant is armed with a loaded gun. Go to case.

Cops take a gun off of Defendant in a gas station store. Defendant is subsequently convicted of armed habitual criminal based on the gun and UUW Felon based on the ammunition in the gun. “Under the plain meaning of this statutory language, the UUW by a felon statute unambiguously authorizes separate convictions when a felon possesses a loaded firearm, a conviction based on the firearm and a conviction based on the ammunition inside that firearm. The language not only criminalizes the possession of any firearm or any firearm ammunition by a felon, but also clarifies that the possession of each firearm or firearm ammunition by a felon constitutes a single and separate violation.” ¶ 36 The charging instrument clearly illustrated the State’s intent to treat Defendant’s conduct as distinct and separate acts. It would be a different story if the indictment merely referred to a “loaded gun.”  People v. Almond

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Il. Sup. Ct.[/caption]

Illinois Supreme Court says that People v. White, 2011 IL 109616, does not apply retroactively. Go to case.

White held that when the factual basis for a plea agreement which is accepted by the circuit court establishes that the defendant is subject to a mandatory sentencing enhancement, the court must impose it, even if the plea agreement between the State and the defendant included the condition that the State would not pursue the enhancement. People v. Smith

Professional Responsibility [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

Appellate court reverses trial court's finding that defense attorney had an ethical lapse in judgement. Go to case.

Defense attorney was defending one inmate and talking to another about representation. The inmate who was on the fence solicited the client inmate to commit murder. The State’s Attorney caught wind of this and asked the attorney if the client would wear a wire. Client had already agreed to do this and attorney was only essentially informed that all this was going on. Attorney immediately informs family of murder solicitor that he won’t take the case. Defendant is charged with solicitation of murder and files a motion to suppress the overhead recordings claiming his prospective attorney violated his ethical duties. Appellate court held that it was error to grant this motion because Defendant did not meet his burden in establishing that there was a violation of Rule 1.18 of the Illinois Rules of Professional Conduct. People v. Shepherd

Traffic [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 5th Dist.[/caption]

Violation of Rule 552 leads to traffic ticket dismissal; Officer basically admits to systematic and chronic violations. Go to case.

Defendant’s pro se motion to dismiss his speeding ticket was granted after it was filed 4 days after it was issued. Officer said there is a gap because tickets are only brought to the courthouse twice per week. He said it was impossible to file the tickets the next day. The cop said Rule 552 is not a mandate. The circuit court clearly saw there was a clear and consistent violation of a Supreme Court Rule, notwithstanding the “directory” nature of this rule. People v. Geiler 

Accountability [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

Summer block party gets out of hand when Defendant and his buddies start shooting all over the place, nonetheless Defendant is not guilty of murder by accountability. Go to Case.

There was no evidence that the bullet that killed the victim came from a gun shot by a person with the same criminal design as defendant. At best all the state showed was that multiple people were committing multiple crimes simultaneously. State choose to go with an accountability murder charge and forego all other charges. That was their mistake. People v. Cowart

Sentencing [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

Notice under section 725 ILCS 5/111-3(c) for aggravated kidnapping was not required because the only offense Defendant could be guilty of was a felony. Go to case.

I think something else is happening here. This decision seems to broaden the decision under People v. Easley, 2014 IL 115581, ¶¶ 19, 22-26 into a different space. This court held that when a person commits a domestic battery and they have a prior domestic battery then only a felony conviction is statutorily available. See ¶ 44. Thus, the State was not seeking an enhanced sentence, but rather, the imposition of the only sentence statutorily permissible. This kind of sounds like felonies are becoming “automatic” without any procedural notice by the State. But in Easley, the jury decided on the existence of the prior. Here, the priors were admitted at sentencing. People v. Sumler

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 5th Dist.[/caption]

This mandatory life sentence in a double murder committed by a 15 year old can’t stick without the trial court taking into account the Defendant’s age. Go to case.

Defendant was taking antidepressants, alcohol, and marijuana when he committed the home invasions. In the end though, he basically was caught by the victims during a break in so he shot them. However, Miller v. Alabama, S.Ct. 2455, 2460(2012) requires a remand for new sentencing. Life sentence for a juvenile cannot be mandatory but only discretionary. Voluntariness of juvenile confession also discussed. People v. Baker

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Defendant’s attempt to get out of paying the remainder of his restitution simply because 5 years has passed failed. Go to case.

Defendant stole more than $400,000 from elderly malpractice victim. He stopped paying restitution then filed motions to void the trial court's contempt of court finding and purge order. “It is true that under the June 2006 restitution order defendant was not obligated to make additional monthly payments beyond those that were due during the five-year period. But it does not follow that the order became unenforceable as to unpaid amounts that became due during the five-year period.” Also, remember a restitution order gives rise to a judgment lien that is enforceable in the same manner as a lien arising from a civil judgment. See 730 ILCS 5/5-5-6(m); People v. Mitchell, 241 Ill. App. 3d 1094, 1098 (1993) ¶ 7. People v. Bruun

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Is there a right to a public hearing on a revocation of probation hearing? Go to case.

Spectors were accused of harassing the State’s witnesses in a probation revocation hearing alleging new criminal conduct. Judge throws them out of court. Defendant did not object at that time. Trial judge’s order stands. Plain-error review is reserved for errors that are clear or obvious based on well settled law. “The pertinent law is not sufficiently settled to permit review under the plain-error rule.” ¶ 11.  People v. Williams

Search & Seizure [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

This illegal pat down does not lead to suppression of evidence (no drugs recovered) but does require vacating a resisting arrest conviction because the officer was not acting in an “authorized” capacity. Go to case.

Defendant was walking on the paved portion of a highway median on a hot day. Cop pulls up on him with overhead lights. Defendant says is talking on his phone, tells cop he is going to McDonald’s and begins to put his other hand in his pocket. Cop grabs the hand and that is when hell breaks loose. Defendant pulls away, taser comes out and Defendant is tazed with no effect once but cop gets him in the leg as he is trying to get away. He then is handcuffed. State argued it was all Defendant’s fault because, “It was defendant who “changed the nature” of the encounter by putting his hand in his pocket and disregarding the officer’s commands.” ¶ 8. Section 720 ILCS 5/7-7 says that a Defendant may not resist an unlawful arrest. However, that section only applies to the actual arrest. Here, Defendant resisted an unlawful pat down. No community caretaking here because Defendant was not in distress (not until the cops started messing with him). People v. Slaymaker

DUI  [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Defendant’s statutory summary suspension stands notwithstanding the fact the sworn report the officer gave him did not list a date for when the warning was given. Go to Case.

The officer later amended the report that was sent to the SOS. 625 ILCS 5/2-118.1(a) requires written notice of suspension to Defendant. The SOS had enough information to determine that notice was given because “the sworn report listed the date that defendant refused to submit to testing, indicated that notice of the suspension was served on defendant immediately, and stated that it was signed on the same date.” ¶ 14. People v. McLeer

Speedy Trial Violation [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 5th Dist.[/caption]

State failed to try Defendant within 120 days after he demanded a speedy trial;  but should all the charges he was facing been dismissed or just the one the state initially elected on? Go to Case.

Trial court dismissed missed all three charges Defendant was being held on. State elected on the DWLR, but did not hold a trial on any of the pending unrelated charges. Nonetheless, Defendant’s right to a speedy trial under 725 ILC 5/103-5(e) was violated for each and every charge he was facing. It was proper to dismiss all of them with prejudice. Tolling under 103-5(e) only occurs if the State actually has a trial on the elected charge within the required time period. The mere election of a charge alone is insufficient for proper tolling. “Thus, section 103-5(e) provides for the tolling of the speedy-trial clock and the additional time as long as the State proceeds to trial or obtains an adjudication of guilt on one of the charges within the initial 120-day period. See generally People v. Quigley, 183 Ill. 2d 1, 14-15, 697 N.E.2d 735, 741-42 (1998).” ¶ 14. People v. Raymer

Evidence [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 5th Dist.[/caption]

Murder conviction upheld, crime occurred in 1957, Defendant’s mother’s death wish hearsay that “John did it” ruled harmless error. Go to case.

In 1957 a seven year old girl disappeared from rural Sycamore. Her body was later discovered about four months later. The state of the body made it impossible to determine a cause of death but an autopsy years later found that a “stabbing” could have occurred. The case against Defendant essentially consisted of several jailhouse snitches and occurrences witness who put Defendant in the town the night of the disappearance. Defendant’s mother was disoriented, confused and heavily drugged up the night she died and said, “John did it.” Court also discusses Hearsay Rule 803(16) involving ancient documents. People v. McCullough

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 4th Dist.[/caption]

Pro se defendant allowed his video interrogation to be played unedited which meant the jury heard about his drug use, prior drug sells, and maybe he knows the guys committing all the shootings. Go to case.

The case against Defendant that he sold drugs to a police was so overwhelming, however, that the appellate court didn’t even need to consider if an error occurred. The court noted that proceeding without an attorney in a criminal matter is unwise. Defendant will be held to the same legal standard as an attorney. Also, noteworthy in this case is the notion that it is improper for the sentencing judge to consider that Defendant received compensation for his drug deal because that is an inherent in the offense. See People v. Atwood, 193 Ill. App. 3d 580, 592, 931 N.E.2d 1362 (1990). People v. Scott

Defenses [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

Insanity defense fails. Defendant was convicted of attempted first degree murder for shooting his 12 year old son in the head. Go to case.

Defendant argued he suffered from paranoid schizophrenia and he was unable to appreciate the criminality of his actions. Two experts testified. One testified the Defendant did not appreciated the criminality of his conduct; the other testified that he did. It was harmless error for the State to argue that when Defendant was arrested the doctors found nothing wrong with him. Technically, the jail medical records were used by the experts to form their opinions and those records were not admitted substantively. Defendant’s heavy drinking contributed to court’s finding that this was not a closely balanced case. People v. Tademy

 

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

In a shooting over a dispute for a location to sells shoot in a parking lot, Defendant’s witnesses testify that Defendant did not do the shooting; some other guy did it. Go to case.

It was not error to deny Defendant’s request for self defense instruction when he did not plead self defense nor was there any evidence by Defendant that he actually shot the victim. Yes, very slight evidence is sufficient to claim self defense. However, when the State’s evidence does not raise the issue it is incumbent on the Defense to do so. That did not happen here. This is another example of a Defendant relying on this over broad language to his detriment. Generally, it is quite hard to have your self defense cake and also deny that you did it. People v. Lewis

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 3rd Dist.[/caption]

Defendant was required to be present at trial in order to claim that there was ineffective assistance of counsel and raise an affirmative defense of entrapment. Go to Case.

Proper to dismiss this postconviction petition. Gang informant in this case actually takes gun clip out of a gun so the Co-Defendant doesn’t actually kill anyone. People v. Montes

Guilty Plea [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

Courts continue to go different ways with the issue of admonishing a Defendant on sex registration at the time of a plea. Go to case.

Here, the court held that mandatory sex offender registration as a collateral consequence, rather than a direct one. Here Defendant did not argue that his attorney failed to advise him (so no ineffective assistance claim) but instead argued the trial court failed to admonish him on having to register. Therefore,  the plea court was not required to admonish Defendant in regard to registration as a sex offender, the absence of such admonishment does not render his plea unknowing or involuntary. People v. Cowart

Post Sentence Petitions [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Court is serious about appeal deadlines. Go to case.

It was proper to dismiss this appeal as untimely even though Defendant was admonished incorrectly on the timing by the trial judge. The rule in People v. Serio, 357 Ill. App. 3d 806 (2005) creates a conundrum for a defendant.  Here the trial court’s consideration of his pro se motion alleging ineffectiveness filed after the court answered the posttrial motion delayed the notice of appeal more than 30 days after the denial of the first posttrial motion. The trial court misadvised Defendant that the time in which he could appeal was tolled when, it was not. “Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result here is problematic in that respect. However, we do not have the authority to disregard our lack of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order.” ¶ 9 People v. Norton

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

Court is really serious about appeal deadlines. Go to case.

Trial court no longer had jurisdiction over Defendant’s case when he filed his claim of ineffective assistance of counsel more than 30 days after the the final judgement. Further, the mailbox rule under Illinois Supreme Court Rule 12(b)(3) does not cover prison mail but only covers U.S. mail. People v. Shines

[caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 1st Dist.[/caption]

State has no burden to provide effective counsel when Defendant hires private counsel to file a postconviction petition. Go to case.

Defendant abandons all his substantive issues and only argues that his post conviction petition attorney was ineffective for filing later than two years after the denial of the direct appeal. Per People v. Csaszar, 2013 IL App (1st) 100467 100467, ¶ 18, although a pro se defendant has a right to reasonable assistance from appointed counsel, neither the Act nor case law supported the claim that the State was required to provide reasonable assistance of counsel for any petitioner able to hire his own postconviction counsel. , and therefore defendant failed to state a cognizable claim for relief. See also People v. Anguiano, 2014 IL App (1st) 113458, ¶ ¶ 32, 34 for a case saying that the Act does require a reasonable level of assistance from all counsel. People v. Cotto

Jury Trial [caption id="attachment_1589" align="alignleft" width="94"]Illinois Case Law | Illinois Criminal Law Ill. 2nd Dist.[/caption]

Juries of less than 12 people are within the sound discretion of the trial court, so no error in denying Defendant's request for a 6 member jury in his double murder trial. Go to case.

Why would you want to waive your jury in a murder trial anyway? Appellate court said that “since it is readily apparent that it would be more difficult for a group of 12 people to reach a unanimous verdict than it would for a group of 6 to reach such a verdict, the defendant’s ability to establish such prejudice would be dubious at best.” No prejudice no error. Also, Defendant was not intimidated into not going pro se before trial. He failed to knowingly and intelligently waive counsel in a clear unequivocal way. Court did what was right by informing Defendant that reappointment of counsel in the middle of trial was unlikely. People v. Jones

Aggravated DUI Proximate Cause Cannabis Case Doesn’t Mention The New Law

Nov 1, 2016 08:34

Description:

People v. Swift, 2016 IL App (3d) 140604 (October). Episode 249 (Duration 8:33)

New cannabis law only gets a passing mention in this proximate cause aggravated DUI case.

No Apprendi Problem When Prior Adjudication Used To Extend A Sentence

Nov 1, 2016 05:54

Description:

People v. Jones, 2016 IL 119391 (October). Episode 248 (Duration 5:53)

Prior adjudications may be considered for extended terms proved up at sentencing with a PSI without any Apprendi violations.

Defendant was sentenced to 24 years for aggravated robbery. He was given an extended term based on a prior adjudication of delinquency for residential burglary.

Delinquency Adjudication Not A Conviction

On appeal, defendant contends that a prior juvenile delinquency adjudication is not the equivalent of a prior conviction for purposes of extended-term sentencing under Apprendi and that such a fact must be alleged in the indictment and proven beyond a reasonable doubt.

The Code

Section 730 ILCS 5/5-5-3.2(b) of the Unified Code of Corrections (Code of Corrections) sets forth various factors that the court may consider as a reason to impose an extended-term sentence. Relevant here is the factor in subsection (b)(7) of section 5-5-3.2, which governs,

“[w]hen a defendant who was at least 17 years of age at the time of the commission of the offense is convicted of a felony and has been previously adjudicated a delinquent minor under the Juvenile Court Act of 1987 for an act that if committed by an adult would be a Class X or Class 1 felony when the conviction has occurred within 10 years after the previous adjudication, excluding time spent in custody.”

730 ILCS 5/5-5-3.2(b)(7).

Apprendi

In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

725 ILCS 5/111-3(c-5) codified this development.

Issue

The question here is whether defendant’s juvenile adjudication, which qualified defendant for an extended-term sentence, falls within Apprendi’s prior-conviction exception and, in turn, the exception in section 111-3(c-5) of the Criminal Code.

It appears the federal courts have gone every which way on this issue. The balancing act focused on the fact that there are no juries for prior adjudications. Prior convictions pass Apprendi muster, in part, because the the defendant is afforded full procedural and constitutional rights in the prior case.

Holding

Nonetheless, the Illinois Supreme Court sided with the jurisdictions that found sufficient due process in juvenile proceedings.

Analysis

SCOTUS made clear in McKeiver that due process does not require the right to a jury trial in juvenile proceedings, reasoning that a jury trial would not strengthen greatly, if at all, the fact finding function.

Juvenile Cases Are Different

The tradition in this area has been to regard recidivism as a sentencing factor not to be proven before the jury.

Prior convictions are different from other factors that increase the sentence for an offense because of the procedural safeguards inherent in the proceedings that resulted in that conviction.

A juvenile adjudication of delinquency is similar to a prior conviction in the sense that both are the result of a person’s prior unlawful behavior or recidivism. The proceedings that result in a juvenile adjudication contain the same constitutional procedural safeguards as those proceedings that result in a prior conviction, except the jury trial right.

Constitutionally Sufficient Safeguards

However, because there is no constitutional right to a jury trial in juvenile proceedings, a juvenile adjudication and a prior conviction both result from proceedings in which the minor or the defendant received constitutionally sufficient procedural safeguards.

Final Say

A juvenile adjudication, therefore, is no less valid or reliable a form of recidivism than is a prior conviction.

For purposes of extended-term sentencing, they are on equal footing. Though defendant did not have the right to a jury trial in his delinquency proceedings, he did have all the other procedural rights of adults in criminal proceedings, such as the right to notice, counsel, confrontation, cross-examination, and proof of guilt beyond a reasonable doubt. See 705 ILCS 405/5-101(3), 5-525, 5-530, 5-605, 5-610.

Those juveniles who are not rehabilitated and commit crimes as adults may be punished in accordance with their entire criminal history.

Professor Karen Daniel Shares Her Insight And Experience On Eyewitness Identification Litigation

Oct 26, 2016 32:18

Description:

Clinical Professor of Law Karen L. Daniel and Director of the Northwestern Center on Wrongful Convictions recently sat down with the Criminal Nuggets podcast. 

In Episode 247 (Duration 32:18), the professor provides insight and answers questions trial attorneys may face when litigating eyewitness identification issues.

 

Clinical Professor Karen L. Daniel

Clinical Professor Karen L. Daniel is a Clinical Professor of Law at the Northwestern Pritzker School of law. She is also Director of the Center on Wrongful Convictions. The Center has helped free numerous wrongfully convicted individuals.

Through her experience in personally handling these cases and supervising her law students the professor has gained a certain expertise in working with eyewitness identification expert witnesses.

What We Cover

Listen in as the professor...

Reveals available resources on eyewitness identification Describes her own experiences working with eyewitness experts Breaks down the ground breaking case of People v. Lerma Illustrates possible litigation strategy Demystifies the eyewitness identification report What Won't Want To Miss

Pay careful attention when Professor Daniel talks about the one motion in limine we should all be making in eyewitness identification cases. The law is not perfect and rule making has not caught up with the research. 

There is one tricky situation where we'll want the careful input of an eyewitness identification expert. Sometimes an expert is not relevant or required. However, sometimes an expert can help guide you and a jury through some tricky terrain. 

Hit the play button above to ensure you capture all this insight.

Eyewitness Identification
Issues Checklist

eyewitness identification issues checklistDownload this checklist of possible eyewitness identification issues that may warn you of problems in your case. This is not an exhaustive list. It's just a place to start. 

Add To My Library Nowscript

Download this checklist now!script Important Links & References Mentioned Clinical Professor Karen L. Daniel Northwestern Pritzker School of Law Center on Wrongful Convictions Professor Daniel email: k-daniel@law.northwestern.edu Recent Case Professor Daniels Worked On (New Trial Ordered) People v. Lerma, 2016 IL 118496 (January) Recent Case In The News Dealing With Eyewitness Identification Professor Shari Berkowitz (Eyewitness Expert) Dr.Gary Wells (Eyewitness Expert) Iowa State University Department of Psychology Dr. Gary Wells Personal Resource Page Dr. Gary Wells Articles Illinois Pattern Jury Instruction 3.15 Illinois Code of Criminal Procedure 725 ILCS 5/107A-2 - Line Up Procedure The Innocence Network The Innocence Network Amicus Curiae Brief Filed Before Illinois Supreme Court (Hint: all our best arguments for admissibility are in there.) Geoffrey R. Loftus (Eyewitness Expert) Dr. Elizabeth Loftus TED Talk Slate Article on Elizabeth Loftus The Jennifer Thompson Story More on Jennifer Thompson  Jennifer Thompson Explains What Happened See Also "Eyewitness Identification Expert Witness Trial Court Hates 'Em" Highlights Right From The Discussion

✓  There are two indisputable facts about eyewitness identification that supporters and distractors must agree on. One has to do with the nature of the scientific findings and the other has to do with our own perceptions. (Go to 3:05) 

✓  What an attorney should send to their eyewitness identification expert. (4:47)

✓  Some of the factors that an expert can help you identify during the actual event are listed here. (5:55)

✓  When it comes to the police procedures used to facilitate an identification the game is all about discovering what you don't know and scrutinizing what you do. Practical real life examples are given to illustrate. (6:39)

✓  A little known jury instruction that you can ask for when proper police procedure is not followed. (7:44)

✓  Why you should  interview eyewitness identification witness for yourself and never just accept the police report version of events.  For example, when witnesses talk to each other that rarely makes into a police report, but there is much more to look out for. (8:22 - 8:34)

✓  Hints and a suggestion on how to find an eyewitness identification expert. (9:22)

✓  What to do to make your first meeting or discussion with an eyewitness identification expert witness as productive as possible. (10:46)

✓  The secret to knowing when you've been tendered an eyewitness identification expert witness report that is on the money and knowing when you have to send it back. (11:42)

✓  Any good eyewitness identification expert will include a statement about this in their final report. This kind of statement is insurance for improving ultimate admissibility of your expert. (14:02)

✓  How to respond to the other side's or even the court's objection, "What good are they?" (14:37)

✓  The true strength and value in People v. Lerma. (15:19)

✓  What to do with the tricky scenario of where the witness has identified the suspect before any police interaction. Let's face it when the witness knows the suspect there is no place for calling an eyewitness expert witness...but subsequent formalized identifications are irrelevant. (16:09-17:14)

✓  WARNING: When the witness kind-of-knows the suspect (acquaintance identifications) you better get an expert involved. This is when things really get tricky. (16:09-17:14)

✓  Do you know about "unconscious transference"? (17:14)

 ✓  The truth about People v. Lerma and why innocence workers were nervous when it first went up to the Illinois supreme Court. Hint: we were still talking about acquaintance identifications. (17:38) 

✓  In a stranger identification case why there should be absolutely no reason why the judge does not admit your eyewitness identification expert witness. (18:06)

✓  CAUTION: There is a big problem with the Illinois Pattern Jury Instruction on identification testimony. In every case there should be motion to use something different. (19:15-22:00)

✓  When the very best witnesses are the absolute worst. (23:00)

✓  How not to put together a lineup.  Police are probably doing this more often than we think. Professor Daniel only became aware of it because she worked with an expert. (24:35)

✓  The shocking error rate (yet hardly discussed) that an expert can explain to a jury and absolutely has to convince a jury that there are deep flaws in human eyewitness identifications. (25:47)

Meet A Real Life Eyewitness Identification Expert: Professor Shari Berkowitz

Oct 20, 2016 44:57

Description:

In Episode 246 (Duration 44:57), she clearly articulates exactly how an eyewitness expert can be used in a criminal case.

Go to show notes.

Who is Professor Berkowitz?

Professor Dr. Shari Berkowitz is on the faculty at California State University Dominguez. She is an assistant professor of criminal justice administration. She completed her PhD at the University of California Irvine under her mentor Dr. Elizabeth Loftus.  

Her particular research interests include: eyewitness memory, false memory, false confession, and the causes and consequences of wrongful convictions. Dr. Berkowitz serves as an expert witness and consultant in legal cases involving eyewitness memory and memory distortion.

She has consulted in criminal, civil, state, federal and military courts for both sides. 

Listen-In As The Professor... Discusses her professional background Outlines exactly what eyewitness experts can and cannot do Explains the very basics of how memory works  Reports on her own research on false memories Breaks down the structure of a typical report she may issue when she's on a case You Won't Want To Miss...

How Professor Berkowitz studied under and was mentored by Dr. Elizabeth Loftus. How she talks about specific high profile cases which first captured her attention and interest in this field. 

Don't let the Professor's Chicago connection fly by without notice. She was formerly an assistant professor in psychology at Roosevelt University in Chicago.

That's where she came across The Northwestern School of Law Center on Wrongful Convictions. She met the director at the time and eventually was introduced to Professor Karen Daniel who is currently the director.

Important Links & References Mentioned California State University Dominguez Hills Assistant Professor Shari Berkowitz Professor Berkowitz email: sberkowitz@csudh.edu Professor Berkowitz phone: (310) 243-30971 Roosevelt University in Chicago Dr. Elizabeth Loftus TED Talk More on Elizabeth Loftus  "Eyewitness Testimony" by Elizabeth Loftus Center on Wrongful Convictions Professor Karen Daniel National Research Council (NRC) 2014 Report Assessing Eyewitness Identification More Highlights From Episode 246

✓ Straight talk on how false allegations can happen to anyone but are particularly devastating when it happens to people with limited resources.

✓  You've heard of "repressed memories" right? When something so bad happens to someone they block it out of memory to preserve their sanity. WRONG! There is no credible scientific evidence that "repressed memories" even exist.

✓ Which begs the question: How does a horrific memory of abuse get reported if (by the reporter's own admission) the memory never existed in the first place?

✓ What the research says about a very detailed memory combined with high emotional impact and reported with high certainty by the person recalling the memory.

✓ How a layperson's understanding of how memory works is DEAD WRONG and how that can cause huge problems in a trial.

✓ The simple reality of how memory actually works and the three stages of memory that happen over and over and over again.

✓ Ever hear a prosecutor tell the jury that a memory was "burned" into a victim's brain or "seared" into their mind for prosperity? The research says defense counsel should be jumping up like their hair is on fire and objecting.

✓ Did you know an eyewitness identification can do more than just help educate a judge or jury? Attorneys have used experts to educate themselves, develop cross examination questions, determine if a motion to suppress should be filed, and as consultants on police line-up or photo array procedures. You'll never guess how the Professor helped in one Illinois case.

✓ What experts never say in their opinions and why this should never be a reason to exclude your own expert witness.

✓ Education, Education, Education is the number one priority, task and goal of an eyewitness identification expert witness. Does your judge or jury know what the latest research on eyewitness memory says? Does your judge or jury know how the science relates to the facts in your case? Of course not, that's why you get an expert. 

✓ Weighing the evidence and credibility determinations always remains with the jury. Don't you want to arm them with the right tools to properly weigh the identification of the accused?

✓ Discover the difference between how true and false memories look to the brain.

✓ Why your jury needs to be aware of the three stages of memory. (Hint: It's all about the distortions that can occur at each stage.)

✓ Bet you've never seen this procedure followed in a lineup. Knowing about it will easily help you determine if the lineup used in your case was fair to the defendant.

✓ Lawyers have learned to be skeptical of eyewitness evidence. However, if you don't know the details behind the skepticism you are no good to your client and easily out matched by a skilled adversary.

✓ I asked the professor point blank, "What kinds of cases should attorneys be looking for to determine if an eyewitness expert can help?" Her reply will make you rethink your entire practice.

Attacking Expert Witness “Foundation” Not The Way To Exclude Unreliable Opinion Testimony

Oct 11, 2016 09:11

Description:

People v. Simmons, 2016 IL App (1st) 131300 (September). Episode 245 (Duration 9:10).

Trial judge easily dismisses shoddy firearm expert testimony and sustains life sentence in this murder case.

See Also…

How to Admit An Expert Witness And Exclude An Unreliable One
Expert Witnesses Under Higher Scrutiny
Expert Witness Defined by Marisa Tomei from My Cousin Vinny is Credible

Background

Defendant was proven guilty beyond a reasonable doubt, where the three eyewitnesses identifications of defendant as the shooter bore sufficient indicia of reliability and were corroborated by firearms evidence linking defendant to the crime.

Holding

The trial court did not abuse its discretion in admitting the testimony of the State’s firearms identification expert where the deficiencies in his testimony merely affected its weight, not its admissibility. This court respectfully disagreed with People v. Safford, 392 Ill. App. 3d 212 (2009), as well as the body of appellate case law that has developed under Safford, on the question of the appropriate standard of review of the sufficiency of the foundation for an expert’s opinion.

Expert Witness

A witness may be qualified to testify as an expert “by knowledge, skill, experience, training, or education.” Ill. R. Evid. 702.

Along with establishing an expert’s credentials, “[t]he admission of expert testimony requires the proponent to lay an adequate foundation establishing that the information on which the expert bases her opinion is reliable.”

And to determine whether that information is reliable, the court must ask whether it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Ill. R. Evid. 703.

“If a proper foundation has been laid, the expert’s testimony is admissible, but the weight to be assigned to that testimony is for the jury to determine.”

Defendant's Argument

Defendant notes that, like the expert in Safford, the State's firearm expert simply testified to the process he uses to compare bullets and his ultimate conclusion that the bullets matched.

He noted that the class characteristics of the bullet matched but could not identify any of the individual characteristics that he found to be comparable between the two bullets. And, as the State's firearm expert conceded, the individual characteristics of two bullets are what enables him to determine whether two bullets match; the class characteristics alone cannot establish a match.

Court Agreed Expert's Testimony Was Shoddy

The reviewing court agreed with defendant that the State's firearm expert testimony was, to say the least, sparse, it did not agree that the defects in his testimony rendered it inadmissible.

The basis for a witness’ opinion generally does not affect his standing as an expert; such matters go only to the weight of the evidence.

The weight to be assigned to an expert opinion is for the jury to determine in light of the expert’s credentials and the factual basis of his opinion. Although the State's firearm expert did not explain what individual characteristics he saw that led him to conclude that the bullets matched, the absence of any such specificity simply went to the weight of his opinion.

Defendant Cross

Defense counsel certainly probed the State's firearm expert's opinion during cross-examination and argued that the jury should disregard it because it lacked any reasoned basis.

In fact, defense counsel even elicited evidence that there is a more objective method for firearm identification—the consecutive matching stria method—that he did not use. The reviewing court agreed with defendant that the State's firearm expert's opinion is similar to the expert opinion found to be inadmissible in Safford, but it declined to follow Safford.

Safford Is An Outlier

“Safford is an outlier case,” and no court since Safford has required that an expert disclose the specific reasons for his opinion as a prerequisite to admissibility.

Thus, the court in Negron found that “the fact that [the latent fingerprint examiner did not rest his analysis or ultimate opinion on a specific number of comparison points” simply went to the weight of his opinion that certain fingerprints matched.

And looking to Safford itself, this court concluded that its analysis was flawed. While the court in Safford cited the principle that the information on which an expert bases his opinion must be reliable (Safford, 392 Ill. App. 3d at 221), it did not correctly analyze that principle.

That principle centers on whether “the underlying facts or data upon which [the expert] seeks to base an opinion are of a type reasonably relied upon by experts in the particular field.”

But the majority in Safford asked a different question—whether the expert sufficiently detailed the reasons for his opinion. The presence or absence of such details is not the same as whether the expert relied on information of a type reasonably relied upon by experts in his field.

In this case, the State's firearm expert testified that he relied on the two bullets’ class characteristics and individual characteristics to reach his conclusion. He testified that other firearms and toolmark examiners rely on this information in conducting their analyses.

Thus, the State established that the State's firearm expert based his opinion on reliable information, i.e., information on which other experts in his field rely.

Expert Provided No Details

That he did not specify which individual characteristics matched on these particular bullets (i.e., the basis of his opinion) simply affected the weight of his opinion—a question for the jury to resolve, not a question for the court to resolve when deciding whether to admit or exclude the State's firearm expert's testimony.

Moreover, this reviewing court disagreed with the court’s conclusion in Safford that the failure to reveal the basis for an expert opinion necessarily curtails a defendant’s right to cross-examine the expert.

This case provides an excellent example. Here, defense counsel cross-examined the expert on his inability to specify which individual characteristics he identified as matching on the two bullets.

And she was able to elicit testimony that the Illinois State Police lack objective criteria to guide their firearms comparison, and that the consecutive matching stria method of identification has a more objective, data-driven foundation.

Defense counsel then used these points in her closing argument.

Finally…

While the expert's testimony did not help defendant—defendant would have benefitted most had the State's firearm expert's testimony been excluded entirely—his inability to recall which individual characteristics he identified did not preclude defense counsel from ably cross-examining him. 

See also People v. Jones, 2015 IL App (1st) 121016 (April).

The Samuel Adam Father-Son Lawyer Duo Accused of Conflict of Interest

Oct 11, 2016 08:42

Description:

People v. Buckhanan,2016 IL App (1st) 131097 (September). Episode 244 (Duration 8:41).

The State inappropriately moved to disqualify the defendant's chosen attorney because the attorneys father represented one of the state's witnesses.

Facts

Defendant was accused of a murder. His girlfriend was being squeezed by the police she hired her own lawyer.

The state believed she had information concerning Defendant's attempted flight the day after the murder. Her attorney was present with her when she gave a statement to the police and he was representing her when she testified before the grand jury.

the State told the judge that it intended to use the girlfriend's testimony regarding her conversation with Defendant the day after the murder to show that he knew he was wanted in a homicide investigation, thus explaining his abrupt departure.

When the defendant was arrested his attorney was the son of his girlfriend's attorney.

The State argued that Junior should be disqualified for two reasons:

First, it asserted that, through his father, Junior had access to confidential information about Defendant's girlfriend that would give the defense an unfair advantage;

Second, it argued that if the jury learned Junior’s father represented a State witness, it would create an appearance of impropriety.

Conflict of Interest

Junior responded by pointing out that both he and his father were solo practitioners and had never worked in partnership with each other.

His father had never disclosed to him any confidential information regarding his client's girlfriend. Junior also challenged the basis for the State’s disqualification motion by pointing out that her statement to police was not inconsistent with her grand jury testimony.

Junior had represented defendant in the past in unrelated issues.

Senior had represented the girlfriend in the past in unrelated issues.

Judge Thought It Looked Funny

Based on the possibility that Junior would call Senior to testify regarding that statement, the court believed there was a serious potential for conflict.

The court found that Junior’s continued representation of defendant could impact the State’s right to a fair trial, since he could potentially access confidential information about the girlfriend that would give the defense an unfair advantage.

It also found that there was a risk of the appearance of impropriety if the jury were to find out that the father of the defendant’s lawyer represented one of the State’s witnesses.

Right To Counsel

However, the sixth amendment provides that a defendant in a criminal prosecution has a right to the assistance of counsel. U.S. Const., amend. VI. As part of this right, there is a presumption in favor of defendant’s counsel of choice.

In Illinois, a two-part test governs State challenges to the defendant’s counsel of choice.

First, the court must determine whether defense counsel has “a specific professional obligation that actually does conflict or has a serious potential to conflict with defendant’s interests.”

If the answer is yes, then the court must determine whether the interests threatened by that conflict are weighty enough to overcome the presumption in favor of defendant’s counsel of choice.

Weighing The Interests

In weighing the interests, courts consider the likelihood that a conflict will actually occur, since “a conflict that would seriously undermine counsel’s effectiveness is not a basis for disqualification if it has little likelihood of occurring.

Courts also frequently consider…

(1) The defendant’s interest in having the undivided loyalty of counsel
(2) The State’s right to a fair trial in which defense counsel acts ethically and does not use confidential information to attack a State’s witness
(3) The appearance of impropriety should the jury learn of the conflict, and
(4) The probability that continued representation by counsel of choice will provide grounds for overturning a conviction.

Analysis

The reviewing court found that Senior and Junior were not formally associated in a law firm. But it was at least arguable that they constitute a firm under Rule 1.0, given their closeness of their professional relationship.

They acted as cocounsel in various criminal matters, shared office space, and Senior covered for Junior in a number of court appearances in this case.

Nonetheless, it said that the interests threatened by that potential for conflict are not enough to overcome the constitutional presumption in favor of Defendant's counsel of choice.

Holding

The appellate court said that the state's motion to disqualify counsel came on the eve of trial and was completely meritless because the witness never contradicted herself.

What the prosecution didn't tell the judge was that they had other abundant evidence of defendant's flight in their possession.

The trial court’s disqualification order violated Defendant's sixth amendment right to choose his own counsel. This was structural error not subject to harmless-error review.

 Reversed and remanded. 

Error To Deny This Substitution of Judge – Room Number Not Sufficient Notice

Oct 11, 2016 02:43

Description:

People v. Tate, 2016 IL App (1st) 140598 (September). Episode 243 (Duration 2:43).

Aggravated robbery conviction is reversed after a bench trial and an SOJ violation.

Kentucky v Padilla Pared Back a Bit

Oct 10, 2016 08:16

Description:

People v. Valdez, 2016 IL 119860 (September). Episode 242 (Duration 8:15).

Judge's immigration admonishments cured the lack of any immigration advice from trial counsel.

 

A Violation In The Constitutional Right To A Speedy Trial

Oct 7, 2016 09:02

Description:

People v. Kilcauski, 2016 IL App (5th) 140526 (August). Episode 241 (Duration 9:02)

Constitutional and statutory speedy trial right violations occurred from these unique facts.

September 2016 Illinois Criminal Case List

Oct 5, 2016 18:52

Description:

Podcast Episode 240 (Duration 18:51) of the Criminal Nuggets features the September 2016 criminal case list. There were 39 published cases dealing with criminal law issues. My case list summarizing these decisions was 35 pages long!

Subscribe: iTunes | Google Play | Android | RSS

Don’t worry if you didn’t get to them. Listen to the audio round-up and download your copy of the case list to peruse when you find the time.

Download Your Copy of The September Case List September 2016 Case List
(Now Available)

Download the most recent Illinois monthly case list. Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this quick summary and get up to speed in no time.


scriptAdd To My Library Nowscript

Download this case list now!script

If you can spare approximately 19 minutes, you can easily get caught up with the top 10 September cases for 2016. Here's a quick snapshot of what you missed:

1. People v. Reyes

The reason why the Illinois Supreme Court finally said de facto life sentences for juvenile offenders are unconstitutional...was it because they were brave or the only logical thing to do? Go to case.

2. People v. Valdez

How the Illinois Supreme Court has paired back Kentucky v. Padilla...this means less Illinois attorneys will be ineffective. Go to case.

3. People v. Cherry

If armed violence cannot be predicated on an offense that makes the possession or use of a dangerous weapon either an element of the base offense or an aggravated or enhanced version of the offense then why can aggravated battery be an appropriate predicate offense? After, all aggravated battery use of a firearm is a Class X while aggravated battery great bodily harm is only a Class 3. Go to case.

4. People v. O’Neal

A sneaky little way the prosecution can abuse the felony murder rule. Go to case.

5. People v. Lubienski

WARNING. The police can stop you if your tire touches a traffic lane just once. How the hell else can they figure out what the heck you are up to? Go to case.

6. People v. Theus

Remember Heien v. North Carolina? SCOTUS said police can justify a traffic stop even if they are mistaken about the traffic law only if the law itself is ambiguous. Wrong! Even completely unambiguous traffic laws may be used to justify an error by the police. Go to case.

7. People v. Nesbit

The simple fact is that you can be found ineffective for not revoking your client’s bond fast enough. Go to case

8. People v. Lucious

Do you confuse conspirator statements in furtherance of a conspiracy with the Bruton rule prohibiting hearsay from a coconspirator? Does it seem like one rule allows what the other prohibits? Listen to the podcast to see how we straighten it all out. Go to case.

9. People v. Tate

Why bond call judges might be systematically committing reversible error...especially if you file an SOJ. Go to case.

10. People v. Buckhanan

This father and son attorney duo run independent law firms. See how this murder defendant gets a new trial because of that. Go to case.

Before You Go...

The hard work has already been done for you. To get your hands on the September 2016 Illinois criminal case list just click the orange button below.

September 2016 Case ListDownload the most recent Illinois monthly case list. 


scriptAdd To My Library Nowscript

Download this case list now!script

Felony Murder Cannot Eviscerate A Legitimate Case For Second Degree Murder

Oct 4, 2016 13:07

Description:

People v. O'Neal, 2016 IL App (1st) 132284 (September). Episode 239 (Duration 13:06)

Defendant shoots his own friend on accident but was acting under an unreasonable claim of self defense. 

 

237.mp3

Sep 30, 2016 10:55

Description:

Paul Meyers On Why Experienced Attorneys Still Confuse Impeachment, Substantive Evidence, and Prior Inconsistent Statements

Sep 29, 2016 36:20

Description:

Paul Meyers of the Kane County Public Defender’s Office does his best to finally set me straight on the intricacies and interplay between impeachment, substantive evidence, and prior inconsistent statements.

More than once on the Criminal and Premium Nuggets Podcasts I have reported that “even experienced trial courts face serious uncertainties when applying section 115-10.1 of the Code.” Well, apparently I’m not immune from falling into this evidentiary trap.

impeachment, substantive evidence, prior inconsistent statement

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If you don’t do anything else, at least download the cheat-sheet and other impeachment/prior inconsistent statement resources we put together to ensure you don’t ever make another error on this topic. This is the all new and improved mental mind map that must go in your trial notebook. Hit “Add to My Library” button you see below.

Download this cheat-sheet now.
ADD TO MY LIBRARY NOW   Updated Cheat-Sheet

Download the most recent roadmap that…
 helps you avoid impeachment & prior inconsistent statement error.
Download this cheat-sheet now.
ADD TO MY LIBRARY NOW

The podcast guest in this discussion presents a logical, easy to follow roadmap to helps us all understand exactly what impeachment is, how it relates to substantive evidence and how they both intertwine with prior inconsistent statements.

Who’s Paul Meyers?

Paul is Kane County, Illinois Public Defender assigned to the general felony division. 

Topics We Cover

Paul does a great job of…

Presenting General Threshold Issues Laying Out a Roadmap or Cheat Sheet Explaining How a Brothers Motion Should Be Used

The interconnectedness of impeachment, substantive evidence, and prior inconsistent statements itself can occupy a small library. In this podcast, we focused on getting the basic concepts explained and understood. 

This way, you could see for yourself how the overall structure of the “correct” analysis fits together. Above all, the overarching goal was to understand the basics so you could walk away with an easy to understand and easy to follow cheat-sheet on this topic.

You’ll have to be the judge on deciding if we succeeding with this mission.

Important Links & Cases Mentioned 725 ILCS 5/115-10.1 Illinois Rule of Evidence 801(d)(1)(A) Illinois Rule of Evidence 607 Illinois Rule of Evidence 613 People v. Blakey, 2015 IL App (3d) 130719 (November 2015) (prior inconsistent statement in this DUI huffing case was admitted in error) People v. Evans, 2016 IL App (3d) 140120 (July) (courts still getting it wrong, prosecutor allowed to get away with a little too much) People v. Hallbeck, 227 Ill.App.3d 59 (2nd Dist. 1992) (seminal case on laying foundation for a prior inconsistent statement) People v. Cruz, 162 Ill. 2d 314, 359-60, 643 N.E.2d 636, 658 (1994)(affirmative damage required before party can impeach their own witness) People v. Brothers, 2015 IL App (4th) 130644 (September 2015)(acknowledge hearing explained) See Also Prior Inconsistent Statement Impeachment Is Not Necessarily a Thing See Also Two Step Formula To Avoid Prior Inconsistent Statement Error See Also Better Read This If You Are An Illinois Trial Attorney More Highlights From The Podcast

► The simple fact is that as a group we are all still confusing impeachment, substantive evidence, and prior inconsistent statements. Paul jumps right into it explains what’s going on. 

► Anytime an attorney is analyzing an impeachment scenario there are some threshold issues that must first be considered…discover these threshold issues.

► What is the “affirmative damage” rule? Do you know how or when to apply it?

► Listen in while Paul explains in normal language exactly what Rule 607 is trying to capture. Go to minute 3:42.

► See minute 4:01 for my detailed confession on what I got wrong and the truth about exactly how I was mistaken on this very issue that I myself have been hyping.

► Here is the better way to approach this problem. This procedure begins with asking whether or not a statement is even inconsistent (even this can get hairy). Then the fun really begins after that.

► Remember in law school how they talked about collateral and non collateral issues. That pops up again. Except this time it makes sense. 

► Remember your law professor talking about “extrinsic evidence”? Yeah, that’s a thing. It too has it’s place, and we find it.

► In many ways the core of this analysis boils down to quickly determining if you have a substantive prior inconsistent statement on your hands. Here’s the quickest way to run through those steps.

► Sometimes it doesn’t matter who’s witness is on the stand. Other times it matters immensely. Get clear on exactly when a witness cannot be impeached at all.

► Why can’t you impeach your own witness when their testimony is merely disappointing?

► How to deal with turncoat witnesses (hint: this is not just a witness who has flipped on you).

► Can you put into words and describe the crucial difference between substantive statements and just plain old vanilla impeachment? Go to minute 38:41 for a concise, understandable definition of these terms.

► Where does having a “good faith basis” fit into all this?

► Discover all the fun things you can do with an acknowledgment hearing after filing an Brother’s motion. (Hint: some of this stuff totally helps the prosecution more than the defense. Go to minute 27:04)

► How to create substantive evidence in a case that doesn’t have any.

► The single most important thing you can do in a domestic case if you have a wobbly witness.

► When NEVER to file a Brother’s Motion. How to conduct a Brother’s hearing. PLUS the gist and proper procedure to follow during a Brother’s motion. Go to minute 18:02.

► The recanting-recanter can really throw a kink in your case. Go to minute 26:10 to learn what to do when this happens to you.

Let me cut to the chase.

By giving us about 30 minutes and by downloading the materials on this page you’ll have an easy to follow road map, a checklist, and system that will help ensure you never make an impeachment, substantive evidence, prior inconsistent statement error again.

Download your roadmap right now.

Download

Before you leave grab your copies and them to your own legal library.

Download This Impeachment & Prior Inconsistent Statement Updated Resoure

Cheat-sheet & checklist, resource guide, and sampleBrother’s Motion all included.
Download now.

ADD TO MY LIBRARY NOW

These resources function as a starting point to get the big picture straight in your head. Almost certainly additional research will be necessary depending on the exact nature of the issues you are able to spot in your cases.

 

235.mp3

Sep 28, 2016 07:53

Description:

234.mp3

Sep 22, 2016 04:44

Description:

Coconspirator Statement Inapplicable Here

Sep 22, 2016 07:08

Description:

People v. Lucious, 2016 IL App (1st) 141127 (September). Episode 233 (Duration 7:07)

Codefendant's statement was inappropriately used against this defendant.

Facts

Defendant hit the victim in her face and stomach. Then Defendant and codefendant threw her to the ground, took her backpacks, and fled.

Victim said that Defendant pressed a gun to her right temple while she was on the ground.

The trial judge only found defendant guilty of aggravated robbery (indicating your armed) and acquitted him of the armed robbery.

No firearm was recovered after the boys were picked up.

The Interrogations

In defendant's confession, he said he didn't have a gun only a cell phone.

In the codefendant's confession he made a statement to the effect that…

“he told the victim, don’t make him shoot you.”

The codefendant also said they did not actually have a gun.

Illinois Rule of Evidence 801(d)(2)(D)

The trial judge said defendant was accountable for the codefendant's words and found that Defendant alluded that he had a gun. No Doubt, the court was thinking of Illinois Rule of Evidence 801(d)(2)(D) which says:

“A statement is not hearsay if [made] by a coconspirator of a party during the course and in furtherance of the conspiracy.”

However…

This statement about “don't make him shoot you” came from the codefendant in his interrogation and not the victim.

That difference is crucial, because that statement came in form a cop and not the victim nor the codefendant.

Confrontation Issues

In Bruton v. United States, 391 U.S. 123, 127-28 (1968), the United States Supreme Court held that the admission of a codefendant’s statement inculpating defendant during a joint jury trial violates the confrontation clause of the sixth amendment.

Subsequently, in Lee v. Illinois, 476 U.S. 530, 543 (1986), the Court held that the confrontation clause is violated when the trial court presiding over a joint bench trial “expressly *** relie[s]” on a codefendant’s confession as evidence of the defendant’s guilt. Indeed, the trial court erred in relying on codefendant’s statement to find that the State proved an essential element of its case against defendant.

The record shows that the trial court did not consider codefendant’s statement solely as to codefendant’s guilt. To the contrary, the trial court’s findings demonstrate that it expressly considered codefendant’s statement as evidence of defendant’s guilt.

Counsel was ineffective for allowing this testimony to be used against his client.

Reversed and remanded.

 

Crossing The Line One Time Justifies A Traffic Stop

Sep 22, 2016 05:05

Description:

People v. Lubienski, 2016 IL App (3d) 150813 (September). Episode 232 (Duration 5:04)

Will crossing the line once justify a traffic stop?

 

How To Cure Our Criminal Justice System

Sep 17, 2016 03:01

Description:

Now, before you judge this you have to listen to the entire plan.

We take judges, prosecutors and police and figure out a way to string ‘em up – that’s right string ‘em all up

…and suspend them in the air.

I’m telling you, there is technology out there that would allow us to do this pretty easy actually a simple crane or bungee cord would do the trick.

Not like a piñata. They’d have to be horizontal, “Mission Impossible” style.

Then we put a miniature copy of the constitution underneath them.

I don’t think they’d need to be up there for too long. A few minutes should do the trick.

We bring ‘em down and debrief them.

I think you may find these individuals may have a new respect for our nation’s laws and the system they have sworn to honor and protect.

I’m telling you this could work.

You see, there is something called the “overview effect” – this is an actual real thing – it’s described as a physical reality that leads to a philosophical enlightenment.

You’re probably thinking: “Say what?”

Astronauts who have been in space, way above the earth, report this euphoric effect from seeing the earth below them. Many say their perspective changed when they looked down. They felt a more fragile sphere below them. Somehow new truths were revealed; vulnerability, inter-connectedness, beauty, all were seen and felt for the first time.

More importantly, when they got back to earth they felt inspired to protect it.

Often former astronauts become environmental activists, tree-huggers, humanitarians and overall do-gooders.

They feel compelled to act, working to solve global problems.

See what I mean?

Imagine when we pull down the judges, prosecutors and police officers who we’ve suspended way up over the constitution – imagine a world where judges, prosecutors and police perceive a fragile, vulnerable constitution.

They’ll just want to protect it!

Well, I say it’s worth a try right?

It’s way cheaper than sending an astronaut into space, that’s for sure.

I have other ideas about our criminal justice system. These other ones are more boring though. They don’t come from space or astronauts, just from the case law.

To do your part check out my cases lists by jumping over to

http://IllinoisCaseLaw.com/caselists

If your all in and really want to roll your sleeves up stop got to

http://PremiumNuggets.com

Right away.

No Constructive Possession Proved In This Search Warrant Case

Sep 10, 2016 06:00

Description:

People v. Tates, 2016 IL App (1st) 140619 (August). Episode 230 (Duration 5:59)

Drug conviction reversed because defendant can't be sufficiently tied to the contraband.

Is It A Conflict of Interest When Codefendant Pays Attorney Fees For Another Defendant?

Sep 10, 2016 09:25

Description:

People v. Wilkerson, 2016 IL App (1st) 151913 (August). Episode 229 (Duration 9:25)

Codefendant who was found not guilty paid for this defendant's attorney.

This Felony Murder Indictment Was Fatally Flawed

Sep 10, 2016 07:35

Description:

People v. Carey, 2016 IL App (1st) 131944 (August). Episode 228 (Duration 7:35)

Felony murder indictment failed to specify which predicate offense his felony murder was based on, conviction reversed.

Episode 5: The Last Step & Some Examples

Sep 9, 2016 14:05

Description:

People v. Campbell, 2015 IL App (1st) 131196 (August). Episode 227 (Duration 14:04)

See also People v. Blakey, 2015 IL App (4th) 130719 (November);

People v. Evans, 2016 IL App (3d) 140120 (July).

The Last Step: Don't Get This Far Just To Choke In the End – D'Oh!

Pay attention. It's almost over.

Every conversation, document, and recording is made up of many many statementS. Use only what you need and avoid error.

Episode 4: Prior Sworn Or Not Sworn Statement

Sep 8, 2016 11:16

Description:

People v. Simpson, 2015 IL 116512 (January). Episode 226 (Duration 11:16)

People v. Simpson, 2015 IL 116512 has set us straight on the personal knowledge requirement.

This is where the heavy thinking takes place.

…don't take anything for granted. Don't skip anything. Follow the steps in the checklist and get it right.
The checklist easily tells us when it's relevant.

Episode 3: Threshold Questions

Sep 8, 2016 12:09

Description:

People v. Cruz, 162 Ill.2d 314 (1994). Episode 225 (Duration 12:09)

These threshold questions can end the analysis before it really begins.

Two itty-bitty questions can short-circuit the process if you remember to ask them!

People v. Cruz, 162 Ill. 2d 314 (1994) is an oldie but a goodie. 
Know this one and you'll cure many trial headaches.

Episode 2: The Big Picture

Sep 8, 2016 03:54

Description:

People v. Brothers, 2015 IL App (4th) 130644 (September). Episode 224 (Duration 3:54)

So exactly why do we keep screwing up prior inconsistent statement?

In People v. Brothers, 2015 IL App (4th) 130644, the court really hammers Illinois attorneys for consistently flubbing this issue up.

Yes, this stuff is “easy“…but if you don't have it written down and chiseled in your brain mistakes will happen.

Episode 1: Prior Inconsistent Statement Mini-Course Introduction

Sep 8, 2016 06:52

Description:

People v. Evans, 2016 IL App (3d) 140120 (July). Episode 223 (Duration 6:52)

Prosecutor gets a little aggressive with a codefendant who improperly took the fifth.

Background

In this murder trial, the defendant was accused of felony murder in the shooting of a gas station clerk. Defendant's codefendant had already been convicted and was put on the stand even though counsel knew he would plead the fifth.

The prosecutor granted use immunity and the witness was admonished he had to answer.

Nonetheless, he continued to plead the fifth.

The prosecutor kept him up there and kept going at him. 20 times he said he was pleading the fifth.

Defendant filed a motion for a new trial, in which he argued, among other things, that the trial court erred by allowing the State to continue to examine the codefendant in the presence of the jury where the examination amounted to testimony by the prosecutor and assumed facts not in evidence.

Here, leading questions tracked his testimony in his own trial.

Issue

Defendant argued that he is entitled to a new trial because the manner in which the prosecutor questioned the codefendant deprived him of his constitutional right to confront witnesses against him.

(Even the issue as presented by the defense was technically inaccurate.)

Defendant claimed prejudice because of the inferences that could have been made from the refusal to answer added “critical weight” to the State's case in a form not subject to cross-examination.

Namely, that the codefendant ran away from the gas station with Defendant, that Defendant was the shooter, and that they hid the gun at his sister's house.

State's Position

The prosecutor had argued that her questioning was proper for impeaching the response that the witness did not remember being with defendant on the day of the murder.

The continued questioning was not error because he had answered some questions, which created an inference he might be willing to answer additional questions.

Reviewing Court

The reviewing court is wrong in holding that had the prosecutor laid a proper foundation she would have been entitled to impeach the witness with his prior inconsistent statement from his own trial.

The court said the witnesses testimony that he did not remember was inconsistent per Rule 801(d)(1)(A)(1). This is just wrong.

The error, said the court, was that the prosecutor never attempted to lay a proper foundation regarding the prior statement made by, and she failed to offer any substantiating proof of the statement to complete the so-called impeachment.

The Gist of the Error

The gist of the error was that the prosecutor improperly disclosed the substance of the codefendant's alleged prior statement to the jury through leading or suggestive questions, which presumed facts not in evidence.

This is actually correct (plus the resulting prejudice).

Then Right Back to Shaky Reasoning

This conclusion is shaky though:

“Consequently, without the admission of the prior statement, the prosecutor's leading questions that placed [the witnesses] alleged prior inconsistent statement before the jury constituted improper impeachment under applicable evidentiary rules.”

I don't see this as a confrontation clause issue.

The court made no attempt to justify this holding with case law. Arguably, since the witness was on the stand “answering questions” he was sufficiently confronted. The trail court again reiterated that the witness responded, “I plead the Fifth” to 20 questions.

As a result of the leading questions, the State's theory of the case regarding the circumstances of the murder was placed before the jury.

Again, with no attempt to put into evidence the witness's prior statement, the testimonial aspects of the examination of the witness regarding the circumstances of the crime came from the prosecutor's questions and not from the witness.

Final Holding

The court's final holding was that that regardless of the grant of immunity to and regardless of whether he actually had the right to assert the fifth amendment, without the admission of the prior statement, defendant's right to confrontation was violated where, over defendant's objection, in the presence of the jury, the witness refused to answer 20 of the prosecutor's leading and suggestive questions about the alleged crime. Murder conviction was reversed because this was not harmless error. Here, the prosecutor improperly brought every detail of the codefendant's prior testimony to the attention of the jury, and it could be argued that it had a prejudicial influence in the minds of the jury due to the indication that the defendant committed the crime for which he was being tried.

Can Jury Hear of the Civil Consequence for Refusing to Blow?

Sep 7, 2016 08:07

Description:

People v. Romanowski, 2016 IL App (1st) 142360 (August). Episode 222 (Duration 8:07)

Is it prejudicial to tell the jury that defendant was told if he refused to blow that his DL would be suspended? 

 

Warrantless Search of Hotel Room Exceeds The Scope of Search Incident to Arrest

Sep 7, 2016 09:15

Description:

People v. Franklin, 2016 IL App (1st) 140059 (August). Episode 221 (Duration 9:15)

Police find weed in this hotel room, but the warrantless search of the room exceeded the scope of a search incident to arrest.

 

August 2016 Criminal Case List

Sep 2, 2016 31:15

Description:

The August 2016 Illinois criminal case list weighed in 30 published cases. Don't worry if you didn't get to them. Listen to audio round-up and download your copy of the case list. This is Episode 220 (Duration 31:14).

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All you have to do is three things to know you've mastered the August cases: (1) listen to episode 220 which is about 30 minutes long, (2) download the case list and pursue at your own leisure, and (3) join the Premium Nuggets and stop messing around.

Here are the...

Top 10 from the August 2016 Illinois Criminal Case List

1. People v. Franklin

Police overstepped this consent search of a hotel room. They find weed for sure and arrest defendant for that, but a search incident to arrest is no longer a free pass to search everything. Go to case.

2. People v. Williams

Police say to defendant, "Come over here?" What do you think? Was he seized at that moment? Go to case.

3. People v. Tates

The single most frequent error trial judges are making with search warrant cases. It has to to do with constructive possession. Go to case.

4. People v. Carey

This has to be what can only be described as the world's worst armed robbery of an armored car. Short of getting himself killed it couldn't get any worse for this defendant.  Go to case.

5. People v. Olivieri

The SNSR defense was invented by police who found themselves in a little trouble. This defendant is able to beautifully apply it to his own criminal defense...and he wins! Go to case.

6. People v. Garner

 The most frequently overlooked and forgotten rule of evidence that can be employed by the defense just can't get any respect. Are litigators astutely staying clear of this thing or do they just don't know about it? Go to case.

7. People v. Fountain

The reason why this defendant was convicted even though there was shaky DNA evidence, unreliable cell phone evidence, and a less than perfect 4 second observation by an eyewitness probably has to do with a lottery ticket. Go to case.

8. People v. Jones 

What issue should never be appealed in a criminal law case. Knowing a little latin would have saved this defendant a whole bunch of anguish. Go to case.

9. People v. Arbuckle

The secret to avoiding a double enhancement in aggravated battery sentences. This won't work in a murder sentencing. Go to case.

10. People v.  Romanowski

WARNING - "The Warning To Motorist" cannot be discussed in front of the jury in one appellate district...seems to be cool in the rest of them. Go to case.

Download

Don't waste your time sifting through cases, I've already done all the work for you. 

To get your hands on the August 2016 Illinois criminal case list just click the image below. 

 

219.mp3

Aug 24, 2016 08:23

Description:

July 2016 Illinois Criminal Case List

Aug 23, 2016 14:40

Description:

July was the month that pro se defendant, Steven Geiler, lost his case. He gave us all quite a ride. What are you gonna do? Welcome to the club Geiler. You work your butt off in a case and just like that you go right back to where you started. This is Episode 214 (Duration 14:39)

July 2016 Illinois Criminal Case List

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There were, of course, other cases. Here's what the courts were up to in July:

Illinois Supreme Court

1. People v. Geiler

Pro se guy who was able to convince the trial judge to dismiss his speeding ticket because of a Rule 552 violation. He then wins at the appellate level. Then he takes it to the Illinois Supreme Court. He argues his own case, and there the court tells him a little police incompetence ain't so bad. Where's your prejudice? Go to case.

Other Lower Reviewing Courts

2. People v. Taylor

This case involved a nonconsensual PBT (preliminary breath test). You ever wonder what a nonconsensual PBT looks like? Man, it ain't pretty. Hit play to find out what happened. Go to case.

3. In re L.W.

This case involves the type of super niche knowledge few prosecutors keep track of. A defense attorney who has this principle in mind can really benefit their client. Hint: It has to do with receiving a good chunk of credit for time served. Go to case.

4. People v. Zambrano

Trial counsel was found to be ineffective here for not ensuring a certain jury instruction was given. Now, the rest of know to look for this and won't miss it in our cases. Go to case.

5. People v. Burhans

This involved an expert forensic nurse testifying for the state. Anytime an expert gets up they pretty much can say anything they want right? WRONG! Trial courts are really reining in some opinions. Go to case.

6. People v. Evans

The number one source of trial error popped up again. This time it was bad. Everyone, I mean everyone just trips over themselves trying to explain the error or lack of error. Go to case

Download

Don't waste your precious summer evenings sifting through cases that may never even help you.

I've done all the work for you. To get your hands on the July Illinois criminal case List just click the image. 

No Double Enhancement Problem When Injury Is Really Bad

Aug 23, 2016 07:08

Description:

People v. Arbuckle, 2016 IL App (3d) 121014-B (August). Episode 218 (Duration 7:08)

Bodily harm may be considered an aggravating factor without employing a double enhancement if the injury is above a threshold level.

Well known that a death cannot be considered a factor in aggravation in a murder.

Facts

This guy wacks his girlfriend with a golf club breaking her arm. Then he jabbed her with the broken end. Her arm was pretty much shattered, a “Grade I open left ulna shaft fracture with comminution involving greater than 5 pieces.”

She couldn't use it anymore.

Extended Term Issue

Defendant argued the judge improperly thought he was extended term eligible on the class 3 aggravated battery.

He was only extended term eligible on the class 2 aggravated domestic battery. Defendant is right that he was not extended term eligible on the class 3 but there is no evidence the judge thought he was. See 730 ILCS 5/5-8-4(a).

Double Enhancement Issue

Also, the defendant argued he was subjected to a double enhancement because the trial judge considered the victim's harm as an aggravating factor.

We have some good language on this issue. In People v. Saldivar, 113 Ill. 2d 256 (1986), our supreme court stated:

“Certain criminal conduct may warrant a harsher penalty than other conduct, even though both are technically punishable under the same statute. Likewise, the commission of any offense, regardless of whether the offense itself deals with harm, can have varying degrees of harm or threatened harm. The legislature clearly and unequivocally intended that this varying quantum of harm may constitute an aggravating factor…[T]he severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.”

Death is Different

Death is different because it does not come in various degrees.

The degree of great bodily harm must still rise above a baseline level before a court may consider the harm as an aggravating factor. We were clearly above that baseline level in this case.

The bone had failed to mend despite extensive treatment and therapy. The victim suffered from continued pain that affected her on a day-to-day basis, and the injury still required further surgery.

 

What The Hell Does “Nunc Pro Tunc” Mean?

Aug 23, 2016 07:24

Description:

People v. Jones, 2016 IL App (1st) 142582 (August). Episode 217 (Duration 7:23)

A nunc pro tunc order is not a way to predate a court order.

Facts

Defendant was arrested and released on crime A.

Later, he was arrested anew for crime B.

Defendant asked the court to exonerate his bond nunc pro tunc to the arrest date on crime B so that he could get credit on crime A for the time he was in custody for crime B.

The State did not object and presumably intended that the defendant would be considered in custody on charge as well.

Nunc Pro Tunc Order

Nonetheless, the reviewing court said the trial court was in error when it entered the nunc pro tunc for the simple reason that there was no order ever entered that omitted something the court previously did or that needed correction or clarification.

You see, the use of “nunc pro tunc” orders or judgments is limited to incorporating into the record something which was actually previously done by the court but inadvertently omitted by clerical error. See People v. Melchor, 226 Ill. 2d 24, 32 (2007); see also Harreld v. Butler, 2014 IL App (2d) 131065, ¶ 13.

A “nunc pro tunc” order is an entry now for something previously done, made to make the record speak now for what was actually done then.

Because a “nunc pro tunc” amendment may reflect only what the trial court actually did, it must be based on some note, memorandum, or other memorial in the court record.

No Pretense

Here is the big one: An order entered nunc pro tunc may not supply omitted judicial action or correct judicial errors under the pretext of correcting clerical orders.

While defendant was on bond in this case he decided to surrender on another unrelated charge. He was never brought before any court on this charge nor did he make any attempt to exonerate his bond until after he was arrested on the other charge.

Defendant wants credit against this sentence for the time he was in custody on the unrelated charge, claiming a nunc pro tunc order entitles him to the credit even though he did not surrender his bond in this case until he appeared before the trial judge in this case.

(Revoking bond is being used the same way as exonerating his bond.)

A defendant who is out on bond on one charge, and who is subsequently rearrested and returned to custody on another charge, is not returned to custody on the first charge until his bond is withdrawn or revoked.

A defendant arrested while on bond remains on bond until the bond is exonerated, at which point the defendant will be considered to be in simultaneous custody on both charges.

Giving effect to the “non pro tunc” order would effectively give the circuit court, the defendant and the State the power to increase the in custody credit beyond the parameters set by the legislature under 730 ILCS 5/5-4.5-100(b).

The mittimus was ordered to be corrected to reflect the loss of the credit defendant was seeking. The only reason it was before the court is because he was fighting for three additional days, instead he ended up losing 50.

Defendant’s Character Is Proper Admissible Evidence

Aug 23, 2016 07:21

Description:

People v. Garner, 2016 IL App (1st) 141583 (August). Episode 216 (Duration 7:21)

Expert witness may testify as to the defendant's character to commit the crime.

Sympathetic Nervous System Reaction Wins The Day In This Gun Case

Aug 23, 2016 08:18

Description:

People v. Olivieri, 2016 IL App (1st) 152137 (August). Episode 215 (Duration 8:18)

Insufficient evidence to prove reckless discharge of a firearm by this conceal and carry permit holder; SNSR wins the day.

 

Expert Witnesses Under Higher Scrutiny

Aug 11, 2016 05:39

Description:

People v. Burhans, 2016 IL App (3d) 140462 (July). Episode 213 (Duration 5:38)

Harmless error to allow this sex case expert to testify about unsupported opinion testimony.

This was a predatory criminal sexual assault conviction with an expert nurse.

The expert was in pediatric nursing, advanced forensic nursing, and in evaluating children of suspected sexual abuse.

Expert Testimony

She testified that numerous research studies show that frequent physical and anogenital exams result in normal findings even in cases of abuse.

She also referenced other studies that analyzed injury to the anogenital area and concluded that the area healed “very rapidly and often without any residual injury.” She further testified that “95 percent of the time outside of 72 hours the exam is perfectly normal.”

Holding

Experts may premise their testimony on information and opinions obtained from the reading of standard publications on which their opinions are based.

However, while an expert does not have to name the publication upon which she relied, the expert must show that the general consensus of the medical and forensic community recognizes the study upon which the expert relies.

In this case, the nurse neither identified any publication nor testified that the general consensus of the medical and forensic science community recognize the studies she cited, thus it was error for the trial court to overrule the defense objection to the nurses references to the conclusions of unidentified research studies.

Court talked about laying a proper foundation for experts but this is basically a 403 argument. See http://illinoiscaselaw.com/expert-witness-new-foundational-element/

Dirty Rat Accomplice Trial Leads To Ineffective Assistance

Aug 11, 2016 10:31

Description:

People v. Zambrano, 2016 IL App (3d) 140178 (July). Episode 212 (Duration 10:30)

Ineffective assistance of counsel for not giving the accomplice instruction leads to murder reversal.

Facts

This was a murder involving at least 4 known culprits. The victim was shot in the head after opening his apartment door. This was a dispute over a girl.

The defendant was seen and recorded in the presence of the other suspects. One of those individuals testified in an early trial then testified again against defendant.

However, this time he invoked his 5th Amendment right to not incriminate himself and only testified after the State granted him use immunity.

Defense Argument

Defense counsel argued defendant was not present for the killing and that a codefendant alone murdered the victim.

The State's Witness

Further the state’s witness was the only witness to identify his client as participating in the murder.

Counsel recited jury instructions regarding witness credibility and argued that the sole eyewitness was not a credible witness.

He suggested that this witness received leniency on his prior charges and hoped to do so for his pending charge in exchange for his testimony.

Illinois Pattern Jury Instruction 3.17

IPI 3.17 says that…

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

The instruction should be given when there is probable cause to believe the witness, not the defendant, was responsible for the crime as a principal or as an accessory under an accountability theory, despite his denial of involvement.

Indeed, testimony of accomplices should be viewed with suspicion and accepted only with great caution, especially where the witnesses were promised leniency or where the testimony was induced with a grant of immunity.

Where the accomplice testifies, strategic reasons for not requesting the accomplice-witness instruction typically have eluded the courts.

Was There Any Reason To Not Give It?

During cross-examination of the state’s witness, defense counsel impeached him with his prior inconsistent statements to the police during his initial interview.

He was also examined about bias regarding the criminal DWLR charges he faced after the murder, and their disposition, including dismissal and reduction of charges, which took place after his testimony at the first codefendant’s trial.

Defense counsel also used the general jury instructions regarding witness credibility to portray the state’s witness as a noncredible witness.

Throughout the proceedings, the defense asserted that he was a liar, whose testimony was impeached by his prior inconsistent statements and the videos from the apartment complex, that his pending cases were resolved favorably after his prior testimony and that he was not a believable witness.

Definitely An Accomplice

There is no doubt that the evidence at trial and the reasonable inferences that can be drawn from the evidence establish probable cause that the state’s witness acted as an accomplice.

He entered the building with defendant and the first codefendant and left with them. This witness testified under a grant of use immunity, the jury should have been instructed that it should carefully scrutinize his testimony in light of his role as an accomplice.

The testimony was detrimental to defendant in that it created the inference that defendant was the shooter, or at least acted in concert with the shooter. This was the only evidence establishing defendant’s participation.

Holding

These circumstances, coupled with the fact that defense counsel embraced the strategy that the witness could not be trusted, reinforce the need for the accomplice witness instruction.

There is no reasonable purpose for leaving out the instruction. Counsel’s failure to submit an instruction on accomplice testimony prejudiced defendant by depriving the jury of critical information it needed to evaluate the witnesses testimony.

Reversed and remanded. I can totally see another panel going the other way with this with a holding that there was prejudice.

DUI Reversed After Nonconsensual PBT

Aug 11, 2016 09:24

Description:

Forced PBT leads to suppression of DUI evidence and DUI reversal.

Facts

Defendant parks his car to ask the officer following him for directions.

The officer conducts FSTS, but he munks them all up.

FST Results

The trial judge said that in light of the instructional errors, defendant’s performance was “satisfactory,” he had “no difficulties performing the tests, no problems with swaying or balance or other issues as to that.”

The trial court found that defendant did not consent to the PBT and therefore it was suppressed.

The officer never asks the defendant if he would take test, instead he essentially just jams the thing in his mouth.

Issue

The creates the question the state wanted the reviewing court to answer on appeal: Does a PBT have to be consensual or can it be forced?

The Statute

625 ILCS 5/11-501.5(a) says that if there is reasonable suspicion, an officer “may request” a PBT, and the suspect “may refuse.”

The Interpretation

The “request” and “refuse” elements of the PBT statute together the statutory use of the phrase “may refuse” denotes a choice, and the phrase would have no meaning if it did not signal that the suspect had the choice to take, or to refuse, the “requested” PBT. Thus, some level of consent or choice is implicit in the statutory language.

Clearly, this has to mean that per the PBT statute an officer cannot command a suspect to take the PBT and that a suspect will not be penalized for refusing the PBT.

Big Picture

Indeed, the purpose of the PBT is to aid in determining probable cause; the PBT results may be used by the State only to establish that the arresting officer had probable cause to arrest, not as evidence at a DUI trial.

In the absence of probable cause, the statute affords protection against unreasonable searches by requiring the request-and-refuse protocol to be conducted under reasonable suspicion.

The court read this protocol as requiring some form of consent before a PBT may be administered.

This is an important distinction between PBT and normal breathalyzer procedures. 

What About Informed Consent?

The police do not necessarily have to inform the driver that he has the option of refusal.

The legislature’s purposeful decision not to require an officer to inform a suspect of his or her right to refuse evidenced the legislature’s intent that the officer need not obtain “informed consent” prior to administering the PBT.

Granted the consent does not need to be “informed consent”.

The Rule

So to sum it all up: the “may refuse” language does not oblige an officer to inform a suspect that he or she may refuse, but it does require that the suspect have a reasonable opportunity to refuse.

Where a suspect voluntarily submits to the PBT upon request, the statute’s request-and-refuse requirements have been met. In other words, so long as the officer requests the PBT without commanding submission, and so long as the suspect is given an opportunity to refuse, the PBT is voluntary.

The PBT does not become involuntary because the suspect is not told that he or she may refuse or because the suspect ultimately was motivated by collateral pressures. Where an officer “requests” that a suspect take the PBT, the suspect is presented with the choice as to whether to take or refuse the PBT (even if the suspect is not informed of the consequences of taking or refusing the PBT).

Holding

Here, the officer did not present that choice, and thus he affected defendant’s opportunity to refuse the PBT.

This Voluntary Confession is Suppressed, Minor With IQ 70

Aug 4, 2016 11:58

Description:

In re S.W.N., 2016 IL App (3d) 160080 (July). Episode 210 (Duration 11:57)

Minor had an IQ of 70, otherwise voluntary confession suppressed.

Great example of the court relying a little too much on a recorded interrogation.

Facts

This was an investigation of a forcful rape that occurred the night before.

Minor immediately interrogate. The minor ended up confessing to a forcible sexual assault.

The officer only knew that defendant played on his school's special olympic basketball team. The officer did nothing else to gathering information on the minor's mental and cognitive abilities.

Proof of Mental Ability

In court, the forensic psychologist testified that the minor had numerous cognitive deficiencies, had an IQ of 70 and would not have understood his Miranda waiver.

 Now here is a fine point. The expert was not saying the minor didn't understand the interrogation questions nor saying that the minor provided an involuntary statement; she was only saying that he likely did not understand the waiver.

He was not retarded, but had extreme impaired functioning.

Teachers Testified

The minor presented 3 school officials who all said the minor has a good vocabulary of individual words, but the words put together to describe intangible rights would have been a big cognitive hurdle for the minor. They all said he often seeks to please to get past the questioning or testing, but later reveals that he didn't understand the original question.

Trial Court Unconvinced

The trial court denied the motion to suppress on two points: First the minor was not in custody so Miranda was not required.

Second, the officer took great care in advising respondent of his rights.

The court commented that the officer went considerably farther than just a mere ritualistic recital of the Miranda warnings. The court also put great emphasis on the video recording of the interview, finding the suggestion that respondent did not understand his rights was belied by the video.

Respondent appeared relatively calm, appeared to understand the situation, and was able to provide clear answers to the questions. The court found that respondent's repeated nods constituted a full acknowledgment of his rights in context. On that point, the court noted: “[H]e is nodding emphatically, as he always does when it's clear that he understands what is going on.” Further, the court stated: “I saw a kid in that video that was very focused. He was with [the officer] every step of the way.”

The minor was sentenced to JIDOC.

Reversed & Remanded

The reviewing court saw it differently.

Custody Issue

On the custody issue the court said our supreme court clarified that the reasonable person standard for custody inquiries must take into account the age and mental capabilities of the person being questioned. The Braggs court reasoned that the factors of age, intelligence, and mental makeup are “analytically intertwined” with the reasonable person standard. See People v. Braggs, 209 Ill. 2d 492, 506 (2003).

The established legal principle is that juvenile defendants are generally more susceptible to police coercion, and that this susceptibility must be taken into account when establishing procedural safeguards attendant to custodial interrogation.

If a juvenile is more susceptible to police coercion during a custodial interrogation, then the same juvenile is also more susceptible to the impression that he is, in fact, in custody in the first instance. This reasoning extends with equal force to defendants with mental impairments.

Simply stated, just as the mentally impaired are more susceptible to police coercion, they are more susceptible to the impression that they are in custody.

Considering respondent's intellectual limitations along with the other appropriate factors the reviewing court said this respondent was subjected to a custodial interrogation, and that the Miranda warnings were therefore required.

Was It A Knowing Waiver?

The reviewing court held that the overwhelming weight of the evidence in the present case warrants a finding that respondent did not knowingly and intelligently waive his Miranda rights.

The trial court's finding that the officer had taken great care and gone beyond a ritualistic recitation, was against the manifest weight of the evidence.

Indeed, the officer himself testified that he had delivered the warnings in the same fashion he would to an adult of average intelligence. He said that he had read the Miranda warnings to respondent “with very little explanation of what they mean,” falling short of the “special care” required in taking confessions from juveniles and intellectually impaired individuals.

The totality of the circumstances indicate that respondent did not understand his Miranda rights, nor did he comprehend what their waiver would entail. No special care was taken to ensure that respondent, an intellectually impaired juvenile, understood the nature of the rights or the consequences of waiving them.

Accordingly, respondent could not have knowingly and intelligently waived those rights, and the incriminating statements he made while in custodial interrogation are inadmissible.

Warning: State Has Some Control Over Available Credit For Time Served

Aug 4, 2016 08:22

Description:

In re L.W., 2016 IL App (3d) 160092 (July). Episode 209 (Duration 8:21)

Sentencing on petition to revoke probation entitles you to more credit than a sentence on contempt of court.

Facts

Minor was going in and out of detention based on an original petition of adjudication. However, the minor ended up doing over 260 days of detention based on several petitions to revoke his probation and several contempt of court petitions all filed in the original case.

No new charges with different case numbers were ever filed. His one file just kept getting fatter.

Issue

When he was sentenced to another 179 days on a fourth contempt of court petition the minor said he had over 260 days of credit built up from all the time he served on the prior PTRs and contempt petitions.

Holding

Reviewing court said, “no”, not really. The fourth contempt sentence was the result of an independent proceeding, and therefore, he was only entitled to sentencing credit for the time he spent in custody in connection with the contempt proceeding.

Analysis

First, the Illinois Supreme Court has held that the contempt power is a means to enforce the terms of a juvenile's probation as an alternative to the statutorily provided enforcement mechanisms.

705 ILCS 405/5-710(1)(a)(v) entitles a minor to custody “credit on the sentencing order of detention for time spent in detention.” However, prior case law has held that, because a contempt proceeding “is an original special proceeding, collateral to and independent of, the case in which the contempt arises,” the custody credit is limited to the time the minor spent in custody in connection with the contempt petition. People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 172 (1981).

What If He Was Sentenced On A PTR?

This would have been a different situation had he been sentenced on a PTR. See People v. Hutchcraft, 215 Ill. App. 3d 533 (1991), where defendant was resentenced on a PTR but was properly given credit for time he served on a prior contempt of court finding.

This is because a PTR sentence is a sentence on the original charge, which is the same as the underlying sentence. But custody credit incurred for serving time on another contempt proceeding, even if derived from the same sentence of probation, cannot be applied as a custody credit to a subsequent contempt sentence.

The Gist & Rule

To allow contempt custody credits to be applied to a subsequent contempt sentence would dilute the court's contempt power which is recognized as being completely independant.

If sentenced to a PTR you are entitled to credit for time served for all the days you have served on that file. If your sentenced on a contempt petition you only get credit for time served on that petition.

Supreme Court Sides With Ignorant Police Over Smart Pro Se Guy

Aug 4, 2016 08:01

Description:

People v. Geiler, 2016 IL 119095 (July). (Episode 208 Duration 8:00)

Pro Se speeding ticket guy loses at the Supreme Court; Rule 552 Violations probably will never lead to dismissal.

New Illinois Marijuana Law : A Ken Wang Debriefing

Aug 3, 2016 24:10

Description:

Sotomayor Told A Big Fat Lie

Jul 27, 2016 15:00

Description:

This little line in Sotomayor’s dissent in Utah v. Strieff (the big improper stop & attenuation case) has been stuck in my mind.See also Podcast Episode 185 of the Premium Nuggets.

 

At the beginning of section IV in her dissent she wrote:

“Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name.”

It’s the line about “drawing on my professional experiences” that really stuck out.

Why did she have to write that down? What did she think we would have assumed she was basing her opinion on? In that fourth part of her decision she goes into all the crap police are allowed to legally put people through. She explains how this may affect a person.

Obviously, she was worried she would be criticized for abandoning her legal training and basing her opinion on just her personal beliefs.

She was trying to cut off the criticism that her opinion was based on her experiences growing up as a Latina in the urban landscape of New York, where encounters with the police were probably pretty frequent.

No, she was explicitly telling us that her opinion did not rely on her personal experience and was solely rooted in constitutional law.

…and that was the big fat lie.

Now, to be fair to the Justice, this is a lie that all the high court judges are telling. They all had to be confirmed and swear and promise that their own personal beliefs and bias would not interfere with their ability to remain impartial and to rule on decisions.

They all make the promise, we all know they can’t live up to.

Do we think that Thomas, Alito, and Scalia (when he was around) kept their personal views and opinions on the proper role of government out of their interpretations of the constitution?

Hell no.

This is how the game is played. You have to get up there raise your right hand and say:

“I am a legal robot, I will not let my humanity enter into my decisions, I can do this. I promise.”

But we all know better.

This is the kind of stuff we go back and forth over at the Premium Nuggets Podcast.

Talking about the cases doesn’t always mean just learning the rules and the doctrines being applied. We really get in there and look at the motivations behind decisions.

This is how we remember the cases and really nail down the ideas. Afterall, we too are just people. It’s the people stories that make all this legal mumbo-jumbo really stick.

If you think this kind of legal learning is for you then the Premium Nuggets is where you wanna be. We’re getting ready to wrap-up the Q2 cases (April-June) and gonna plow right into July. The courts don’t slow down so we can’t either.

Hit the link below, and I’ll see you on the other side.

http://www.PremiumNuggets.com

Take care,
Sam.

DUICaseList.pdf

Jul 18, 2016

Description:

Speedy Trial Violation Occurs Here Where Defendant Was “Held” For Multiple Offenses

Jul 16, 2016 07:12

Description:

People v. Smith, 2016 IL App (3d) 140235 (June). Episode 205 (Duration 7:12)

Conviction for aggravated criminal sexual abuse is reversed to speedy trial violation.

Speedy Trial Right

Both the United States Constitution and the Illinois Constitution guarantee the right to a speedy trial for anyone accused of a crime. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The Illinois speedy trial statute enforces this constitutional right, and its protections are to be liberally construed in favor of the defendant.

Issue

Defendant contends that he was denied his statutory right to a speedy trial as:

(1) he was served with a Peoria County arrest warrant in this case while he was awaiting trial in Sangamon County on another charge (he was convicted of this different aggravated criminal sexual abuse case)
(2) he was held in the Sangamon County jail for 31 days after he was sentenced on the Sangamon County case (7 years IDOC); and 
(3) over 120 days passed from the termination of proceedings in Sangamon County to the date he filed his motion to dismiss.

The court had to analyze if defendant was “in custody” on the Peoria charge while he was sitting in jail in Sangamon County on a different charge?

Illinois Speedy Trial Statute

725 ILCS 5/103-5(a) of the speedy trial statute states,

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.”

 The IDA (Illinois Detainer Act -730 ILCS 5/3-8-10) further applies the 160-day time period and trial demand requirement to “persons committed to any institution or facility or program of the [DOC] who have untried complaints, charges or indictments pending in any county of this State.”

Analysis

The terms custody and commitment are both terms which have commonly been used interchangeably to characterize actual imprisonment, or incarceration, or confinement. See People v. Mikrut, 117 Ill. App. 2d 444, 448 (1969).

As defendant was not actually imprisoned, incarcerated, or confined by the DOC at the time that the proceedings in Sangamon County were terminated, defendant was not in the custody of the DOC, and the IDA does not apply.

Defendant was, thus, always under a 120-day speedy trial clock.

Further, this clock does not begin to run until the proceedings in the first county end and defendant is held in custody by or for the second county on the subject charges.

Rule

A defendant is not in the custody of the second county until the first proceedings have ended, even where a defendant is served with a warrant while incarcerated in the first county, where a hold or detainer is lodged against him while incarcerated in the first county, or where defendant is brought before the court in the second county, but then is returned again to the custody of the first county.

In order for a defendant to be in the custody of the second county upon termination of proceedings in the first county, defendant must be served with a warrant while incarcerated in the first county.

Holding

The service of the Peoria County warrant on defendant effectuated his custody by Peoria County upon the termination of the Sangamon County proceedings.

Stated another way, defendant was legally transferred to the custody of Peoria County once he was sentenced on the Sangamon County conviction.

Accordingly, defendant was in custody of Peoria County after he was sentenced on June 11, 2013, and therefore, section 103-5(a) of the speedy trial statute applies, giving the State 120 days to bring defendant to trial.

Over 120 days passed from the time defendant was taken into custody by Peoria County to the time his motion to dismiss was filed on October 24, 2013, and even more time passed before his trial ultimately took place on December 11, 2013.

Defendant's speedy trial rights were violated so long as the delay was not attributable to him. Before the trial date, the State asked for a continuance. Defendant objected and told the court he was prepared for trial. The continuance was granted over defendant's objection. The new trial date that was set was outside of the 120-day speedy trial window.

In A Compulsion Defense The Potential Harm Has To Be Imminent

Jul 16, 2016 05:32

Description:

People v. Collins, 2016 IL App (1st) 143422 (June). Episode 204 (Duration 5:31)

Assuming the codefendant (who was the shooter) was a really bad dude and did threaten the defendant, exactly how imminent does the potential harm have to be? 

Compulsion Defense

Compulsion is an affirmative defense whereby a defendant is not guilty of an offense “by reason of conduct that he or she performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he or she reasonably believes death or great bodily harm will be inflicted upon him or her, if he or she does not perform that conduct.” 720 ILCS 5/7-11(a).

Threat of Death or Great Bodily Harm

To warrant an instruction on compulsion, defendant must present “some evidence” sufficient to raise an issue of fact for the jury and create reasonable doubt as to defendant’s guilt. However, this defense is not available if defendant had an ample opportunity to withdraw from participation in the offense but failed to do so.

For the compulsion defense to apply, the threat of death or great bodily harm must be imminent.

A threat of future injury “is not sufficient to excuse criminal conduct.”

Facts

In this robbery of a gas station the clerk gets shot by one of the men involved.

Defendant admitted his job was to go in first to get the attendant to open the glass door. Defendant accomplished this by asking for a cigarette and then not letting the attendant close the door.

Defendant testified that the codefendant, the one witht the gun, reached into his hoodie pouch and pulled out a black gun. He told defendant that “all I need you to do is go into the gas station and get him to open up the gas station window” so they could commit the robbery.

The codefendant pointed the gun toward defendant’s chest. Defendant testified he felt threatened.

Holding

The judge refused to give the compulsion instruction. Finding that the threat subsided when defendant walked out. He could have gone out–he had two phones. He could have called anybody. But he didn’t.

Simply, the threat of future injury in this case was not sufficient to excuse criminal conduct and that defendant had a number of ample opportunities to withdraw from the criminal enterprise and he failed to take steps in that direction. That is the key.

He failed to withdraw. Defendant was convicted of attempted armed robbery and aggravated battery with a firearm, but not guilty of attempted first degree murder. The actual robbery and shooting did not occur until around 8:20 p.m., hours after the incident in Allen’s garage.

“Great Bodily Harm” is Different From “Severe Bodily Injury”

Jul 16, 2016 05:05

Description:

People v. Alvarez, 2016 IL App (2d) 140364 (June). Episode 203 (Duration 5:04)

The statute required “great bodily harm and permanent disfigurement”, however consecutive sentencing requires “severe bodily injury”, the judge only made one finding.

Judge Denies Motion To Continue To Pursue Lynch Material (Case Study in Litigation Decisions)

Jul 16, 2016 07:57

Description:

People v. Gibbs, 2016 IL App (1st) 140785 (June). Episode 202 (Duration 7:56)

Was it error for the judge to deny defendant's motion to continue the trial so he could build up his Lynch material?

No not in this case.

Facts

Defendant hit the victim over the head with a brick and took his phone. Defendant was only found guilty of aggravated battery and acquitted of the robbery.

After the trial the defense did produce 30 reports of the victim's arrests for crimes such as aggravated criminal sexual assault, battery, armed robbery, and assault. Turns out victim was a bad dude.

At the trial, defendant was only allowed to admit one of the victim's certified convictions.

When denying the continuance the trial judge said:

“It strikes me as a desire to delay now that the State has answered ready, and they have their complaining witness here in court. It's not a game where you can answer ready, demand trial, knock some time off the term, and then request a continuance once the State answers ready.”

It did appear that the defense was only worried about this Lynch material until after the codefendant plead guilty.

Reasoning

Here, the court's decision to deny the motion for continuance rested on the earlier demand for trial as well as his lack of diligence in pursuing his defense.

The defense argued that its failure to pursue a defense based on the victim's violent criminal history was based on the codefendant's unexpected “unavailability” and the late tendered discovery, there is no evidence that either event was a surprise requiring a change in trial strategy.

Defendant demanded trial and was running a speedy clock with knowledge that discovery was missing.

So he had no credibility when he then claimed surprise to justify a continuance to reevaluate his trial strategy. The trial court was not unreasonable in determining that the defense failure to pursue a strategy emphasizing the victim's criminal history reflected a lack of diligence that could not be excused by his allegations of surprise.

This is particularly true where, as part of discovery (and months prior to trial), the defense had the victim's Criminal History Report reflecting dozens of arrests for alleged crimes of violence.

Also, good discussing on when witness testimony is appropriate when admitting Lynch material.

Another Single Blow Murder Reversed

Jul 16, 2016 04:30

Description:

People v. Yeoman, 2016 IL App (3d) 140324 (June). Episode 201 (Duration 4:29)

Single blow second degree murder is vacated.

Facts

This was a road rage situation that lead to defendant and the victim getting out of their cars.

Defendant punched elder victim one time in the face.

That was the only blow that was struck during the entire confrontation by either party.

Victim was stunned or knocked out, fell back, and hit his head on the pavement. Victim was disorientated and began throwing up. An ambulance was called.

Tests revealed that his skull was broken on the left front area of his forehead, that he had suffered a large scale hematoma at the top and front of his head, and that he had bleeding on both sides of his brain and within his brain.

Three months after the incident occurred, the victim passed away as a result of his injuries.

Charges

Defendant was charged with two counts of second degree murder (Class 1 felonies), one count of aggravated battery of a senior citizen (a Class 2 felony), one count of aggravated battery on a public way (a Class 3 felony), and one count of aggravated battery causing great bodily harm (a Class 3 felony).

Defendant was 39 years old, had been a carpet installer for the past 22 years, he was 5'7″ tall, and he weighed 160 pounds. Similarly, victim was almost 64 years old, he was very active and had great mobility for his age, he was 5'6″ tall, and he weighed 160 pounds as well.

The jury found defendant guilty of all four charges.

Law

There is a long-standing general rule in this state that death is not ordinarily contemplated as a natural consequence of a blow or blows from a bare fist. There are, however, some exceptions to the general rule that have been recognized over the years. See Podcast Episode 151.  People v. Nibbe, 2016 IL App (4th) 140363, ¶ 28.

For example, the courts have held that striking another person with a bare fist may constitute murder when there is a great disparity in size and strength between the defendant and the victim.

The reviewing court held that this conduct alone was not the type of conduct that would generally create a strong probability of death or great bodily harm to the victim. the evidence was insufficient to prove the knowledge element of the second degree murder charge.

Defendant, therefore, could not have knowledge that such a result was practically certain to occur. See 720 ILCS 5/4-5(b). See also Nibbe, 2016 IL App (4th) 140363, ¶ 34.

Defendant's conviction for second degree murder was, thus, reversed, and sentence for aggravated battery to a senior citizen was affirmed.

Lynch Material

Also, supposed Lynch material was properly excluded because there was no indication in the prior statement that the victim made at the group counseling session that he did anything more than approach the offending vehicle and possibly yell at the driver. Such conduct is not sufficient to qualify as aggressive and violent behavior.

Bad Drug Stipulation Leads To Reversal

Jul 16, 2016 03:46

Description:

People v. Davis, 2016 IL App (1st) 142414 (June). Episode 200 (Duration 3:45)

Due to a bad stipulation, the State failed to prove beyond a reasonable doubt that the defendant was guilty of delivery of a controlled substance within 1000 feet of a school.

Facts

The defendant was charged by indictment with one count of delivery of a controlled substance, less than one gram of heroin, within 1000 feet of a school under section 407(b)(2).

Holding

The reviewing court agreed that although the evidence established that the delivery of less than one gram of heroin took place in the alley behind the gas station the officer did not identify the exact location in the alley where the transaction took place, and the State failed to introduce evidence of the distance from the location of the transaction in the alley to Orr Academy High School.

The State, thus, failed to prove him guilty beyond a reasonable doubt of delivery of a controlled substance within 1000 feet of a school.

How To Measure Distance

Illinois courts have not directly addressed the issue of how distance should be measured in order to establish that an offense under the Act occurred within 1000 feet of a school.

Several cases involving drug transactions alleged to have taken place within 1000 feet of a church appear to accept the proposition that the measurement is to be made from the actual location of the drug transaction to the real property comprising the church (720 ILCS 570/407(b)(2).

Although this court has not directly spoken on the measurement necessary to establish that an offense under the Act occurred within 1000 feet of a school, they now have done so.

In order to convict a defendant of delivery of a controlled substance within 1000 feet of a school, the State must prove beyond a reasonable doubt that the distance from the actual site of the transaction to “the real property comprising any school” is 1000 feet or less. 720 ILCS 570/407(b)(2).

Holding

In this case, the record is devoid of evidence establishing that the distance between the real property comprising Orr Academy High School and the actual location in the alley where the delivery of the controlled substance took place is 1000 feet or less.

First, there is no evidence describing where in the alley behind the gas station the transaction occurred.

Second, there is no evidence establishing where Investigator began his measurement, the stipulation only states the address which could be anywhere on the gas station’s property taking the stipulated testimony as true, the parties only agreed that somewhere on the property of the gas station was within 1000 feet of the Orr Academy High School gymnasium at the nearest property line gate.

The natural probative effect of the stipulation thus falls short of proving that the distance from the actual site of the transaction in the alley behind the gas station to the real property comprising Orr Academy High School is 1000 feet or less.

That conviction alone was reversed.

Recorded Interrogation Justifies Holding Defendant More Than 98 Hours Before Seeing a Judge

Jul 16, 2016 09:36

Description:

People v. Suggs, 2016 IL App (2d) 140040 (June). Episode 199 (Duration 9:35) 

Recorded interrogations can be used to justify an interrogation that occurred of a Defendant held well over 98 hours.

Judge Removed From Case To Prevent Palpable Injustice

Jul 16, 2016 16:04

Description:

Sometimes the defense can gather up pretty convincing evidence of police misconduct, and the trial judge just can't pull the trigger on doing the right thing. Episode 198 (Duration 16:04)

See People v. Montanez, 2016 IL App (1st) 133726 (June) and
People v. Serrano, 2016 IL App (1st) 133493 (June)

Judge Removed From Case To Prevent Palpable Injustice

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Trial court's granting of the State's motion for directed verdict after the defendant's testimony in this third stage hearing was reversed.

The reviewing court said any other result would work a palpable injustice.

The Petition

This petition involves a murder 22 years ago. This was a shooting.

The entire petition relied on a snitch who recanted and other state witnesses who subsequently recanted.

The Snitch

The state's witness who said the defendant's confessed to him completed an affidavit in which he recanted his trial testimony. He averred that his testimony at trial was “false in all respects.”

Going point by point, attested that the testimony he gave was supplied to him entirely by Detective Guevara and that he agreed to give the testimony as a result of threats, physical coercion, and promises of leniency for his own crimes.

The witness accepted 9 years when he was eligible for 100.
He was also given money and received special treatment in prison in return for supplying false information in this case and in others at the behest of Guevara.

The Eyewitnesses

Defendant and his codefendant filed a statement from another eyewitness who never testified at trial but testified before the grand jury. This witness also recanted his supposed eyewitness testimony offered during the investigation and to the grand jury.

Affidavits or other forms of sworn statements from at least 10 different witnesses swearing that Guevara had abused them or coerced them into giving false testimony were also obtained.

At the evidentiary hearing, Detective Guevara invoked his fifth amendment right, refusing to answer on grounds that he might incriminate himself. Similarly, the state's informant invoked the fifth amendment and refused to give testimony to back up his sworn recantation. There were several indications that he feared prosecution for having previously perjured himself at defendant's’ trial.

The allegations against the police were that they beat the witnesses and gave them photos and reports to "study".

Coerced Confession

One of the defendant's in this case said the detective beat him into a confession and threatened to beat his wife if he didn't confess. Other witnesses testified to similar police misconduct. One witness said he was punched so hard by the detective he suffered permanent hearing loss and confessed to a murder he did not commit.

The trial court barred the testimony of 12 other individuals who would have averred that they were abused or otherwise witnessed misconduct by Guevara. The trial court’s reasoning for not allowing the evidence was that the testimony was too temporally remote or not similar enough to the allegations in this case.

The Victim's Wife

The victim's own wife was barred from testifying at the third stage hearing.

She would have testified that she was unable to identify a vehicle when she drove with the detectives, but that Guevara took her to the location of the vehicle and told her that it was the car from the gas station. It was him, not her, who identified the vehicle.

She would have also testified that Guevara falsely told her that some bullet holes in the subject car matched the ballistic testing done at the scene of her husband’s murder when they, in fact, did not.

Trial Judge Ruling

The trial judge denied the petition claiming the defendant failed to prove his case that the the witnesses were coerced into testifying falsely.

Because the trial judge dismissed after a directed motion by the state, the question here is: has the petitioner made a prima facie showing that the new evidence presented, taken in a light most favorable to him, would probably change the result if the case was retried?

At trial, the only direct evidence of petitioner’s guilt was the informant's testimony. The informant supplied what amounted to a confession from defendants including details of the crime that swayed the fact finder. The trial judge commented, “were it not for the testimony of [the informant], there wouldn’t have been much evidence here. His testimony is crucial.”

That “crucial” testimony is now entirely repudiated in a sworn statement by the person who gave it.

The witness now claims the testimony was “false in all respects.” Detail by detail the informant averred that the testimony he gave at trial was fed to him by Guevara, was coerced, and was not true.

Analysis

Although, recantations should be viewed skeptically, this one contained significant additional corroboration. The postpetition trial judge stated that “the evidence in the present case so overwhelmingly favors the State that no contrary verdict based on that evidence could ever stand.” The reviewing court profoundly disagreed. The reviewing court was not so dismissive of the petitioner's witnesses.

“In our view, any allegation that Guevara coerced a person to provide evidence is relevant to whether defendants in the case at bar were similarly coerced.” For the trial court to find all of that evidence totally unworthy of any credit when it was required to view the evidence in a light most favorable to petitioner is truly puzzling. At this stage in the proceedings, petitioner was required to make out merely a prima facie case that would cause the court to view the “evidence presented at trial in a different light and undercut the court’s confidence in the factual correctness of the guilty verdict.”

That has clearly occurred here.

When all of the postconviction evidence is viewed in a light most favorable to petitioner, the trial court was wrong to say that no contrary ruling could ever stand. The trial court turned a blind eye to much of the evidence and also refused to admit probative, admissible evidence that, when evaluated under the proper standard, is damning.

Even where the court gave lip service to the standard it was supposed to apply, the court clearly did not adhere to that standard.

The postconviction court gave the impression that it was flatly unwilling to consider the evidence offered by petitioner. Therefore, in the exercise of discretion under the supreme court rules, the reviewing court found that the interests of justice would be best and most efficiently served by the case being assigned to a different judge on remand.The directed finding in favor of the State is vacated. The case is remanded to the presiding judge of the criminal division of the circuit court with instructions that the case be assigned to a different judge to adjudicate the reinstated third-stage postconviction proceedings.

Judge Removed From Case To Prevent Palpable Injustice

Jul 16, 2016 13:34

Description:

Sometimes the defense can gather up pretty convincing evidence of police misconduct, and the trial judge just can't pull the trigger on doing the right thing. Episode 198 (Duration 16:04)

See People v. Montanez, 2016 IL App (1st) 133726 (June) and
People v. Serrano, 2016 IL App (1st) 133493 (June)

Illinois Stalking and Cyberstalking Declared Unconstitutional

Jul 15, 2016 07:47

Description:

People v. Relerford, 2016 IL App (1st) 132531 (June). Episode 197 (Duration 7:46)

Trial court declares stalking and cyberstalking unconstitutional; we'll see what the Illinois Supreme Court says.

Facts

Defendant did not get a job at a radio station.

He then proceeded to email the employees and put up thinly veiled threats on facebook. At one point he showed up at the station without permission and was escorted out.

One particular female employee seemed to be singled out.

Stalking Statute

In its current form, section (a) of the general stalking statute provides:

“A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (1) fear for his or her safety or the safety of a third person; or (2) suffer other emotional distress.”

720 ILCS 5/12-7.3(a)(1), (2).

The general stalking statute defines “course of conduct” as:

“2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.” 720 ILCS 5/12-7.3(c)(1).

The statute further defines “emotional distress” as “significant mental suffering, anxiety or alarm”  and “reasonable person” as “a person in the victim’s situation” 720 ILCS 5/12-7.3(c)(3) & (c)(8).

SCOTUS on the Issue

The United States Supreme Court handed down its decision in Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), which addresses a federal stalking statute.

In Elonis, the Court held that due process precluded the government from convicting a defendant under a federal stalking statute because the defendant’s conviction “was premised solely on how his posts would be understood by a reasonable person.” Id. at ___, 135 S. Ct. at 2011.

The defendant was charged with violating a federal statute that made it a crime to “transmit[ ] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” after he made several Facebook posts about his ex-wife containing violent imagery. Id. at ___, 135 S. Ct. at 2008 (quoting 18 U.S.C. § 875(c) (2006). 

The problem, though, was that the defendant’s conviction “was premised solely on how his posts would be understood by a reasonable person.” Id. at ___, 135 S. Ct. at 2011. The Court explained that imposing criminal liability using a “reasonable person” standard was incompatible with due process requirements:

“Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct–awareness of some wrongdoing.’ Having liability turn on whether a ‘reasonable person’ regards the communication as a threat– regardless of what the defendant thinks–‘reduces culpability on the all-important element of the crime to negligence,’ and we ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes.’ Under these principles, ‘what [Elonis] thinks’ does matter.” Id. at 135.

We note that Elonis was decided in 2015.

Thus, neither the legislature, when it amended the stalking statute in 2009, nor the judge who presided over defendant’s trial in 2013, had the benefit of the Supreme Court’s guidance on this issue.

Analysis

Instead, an individual’s conduct is criminal under section (a)(2) if, and only if, the defendant “knows or should know” that it would cause “reasonable person” to “suffer ***emotional distress.” 720 ILCS 5/12-7.3(a)(2).

Subsection (a)(2) contains no requirement that the individual actually intend to inflict emotional suffering on a person. Thus, as currently drafted, subsection (a)(2) bypasses “the conventional requirement for criminal conduct–awareness of some wrongdoing” in favor of a reasonable person standard of criminality.

This is a standard which the due process clause does not permit.

Holding

Accordingly, the court held that subsection (a)(2) of the general stalking statute, of which defendant was convicted and sentenced, lacks a mens rea requirement and is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

Subsection (a)(1) of the general stalking statute violates due process for the same reason as subsection (a)(2), as it does not contain a mental state requirement. Under subsection (a)(1), a defendant can be convicted of stalking if he or she engages in course of conduct and “knows or should know” that the course of conduct would “cause a reasonable person to *** fear for his or her safety or the safety of a third person.” 720 ILCS 5/12-7.3(a)(1) (West 2012).

Like subsection (a)(2), criminality under subsection (a)(1) turns entirely on whether the defendant “knows or should know” how a “reasonable person” would react to the defendant’s conduct, without regard to the defendant’s subjective intentions. The two sections differ only in that subsection (a)(2) requires the victim to suffer emotional distress, whereas subsection (a)(1) requires the victim to fear for his or her safety, or the safety of a third person. Subsection (a)(1) of the general stalking statute is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

Subsections (a)(1) and (a)(2) of the cyberstalking statute are virtually identical to subsections (a)(1) and (a)(2) of the general stalking statute. The principal difference is that the cyberstalking statute specifies that the defendant’s course of conduct involved electronic communications. It necessarily follows then, that subsections (a)(1) and (a)(2) of the cyberstalking statute, which also lack a mens rea requirement, are facially unconstitutional under the due process clause of the fourteenth amendment for the same reason that subsections (a)(1) and (a)(2) of the general stalking statute are unconstitutional.

Fourth District Doing Something Different With Dog Sniff Cases

Jul 14, 2016 06:42

Description:

People v. Pettis, 2016 IL App (4th) 140469 (June). Episode 196 (Duration 6:42)

In the Fourth District a positive drug sniff may not necessarily lead to the automatic searching of the car's passengers.

Facts

Defendant was in the rear side passenger in car stopped for suspended plates for a mandatory insurance violation.

The driver was arrested for revoked license but also showed signs of nervousness. A drug dog came out. It alerted.

The officers then took defendant out of the car for a pat-down weapon search. Defendant consented to a search of his person. Nothing was found on him.

Defendant was handcuffed because the drug dog alerted on the vehicle. Defendant was then placed in the backseat of one of the police vehicles.

The driver and front seat passenger are then removed. The female told the cops defendant hid drugs in his buttocks.

When they go back to him they felt the “knot of a [Baggie]” between defendant's buttocks.

Issue

Defendant's appeal rests on violations of the 4th amendment. He simply argued the search of his person was done without proper probable cause and waived everything else including:

Any scope of the sniff and  Any argument that he should have been released after his warrant check came back clean Law

Police officers may extend a traffic stop without violating an occupant's constitutional rights as long as the extension is based on evidence leading to a reasonable suspicion of other criminal activity discovered before the original mission of the stop is completed.

Analysis

In this case, the State presented sufficient information to show the continued detention in this case was appropriate based on evidence discovered during the mission of the original stop.

The evidence in question was the police dog's positive alert on the suspect vehicle with defendant inside.

Defendant did not argue the police dog's open air search was not done within the time reasonably required to complete the purpose of the stop in this case.

While the police did not believe defendant had the drugs on his person after that search, the officers had reasonable suspicion contraband was in the vehicle or in the possession of the driver or front seat passenger.

Holding

The police did not violate defendant's rights by continuing to detain him after this consensual search until they could search the vehicle. After the front seat passenger said defendant had the drugs the police had sufficient probable cause for a warrantless search.

In 2000, this court held “that a police canine alert of a car's exterior indicating the presence of a controlled substance within the car does not, without more, provide the police with probable cause to search the persons of the car's occupants.” People v. Fondia, 317 Ill. App. 3d 966, 969, 740 N.E.2d 839, 841 (2000).

However, this court stressed its “holding is limited to the facts of record and turns on the absence of any indicia of suspicion particular to defendant. Without more, the search of defendant's person was not justified.” (Emphasis in original.) Id. at 972, 740 N.E.2d at 844.

The instant case is distinguishable from Fondia because the searches in this case were not based simply on the police canine's positive alert. The other individuals in the vehicle made statements regarding defendant hiding something between his buttocks or in his anus.

The driver told an officer defendant had “his hand up his ass.”

Further, the front passenger told an officer defendant had concealed something in his buttocks and had asked her if the police dog would be able to smell whatever he placed between his buttocks.

Since this court's decision in Fondia, the Second District specifically rejected this court's approach. People v. Neuberger, 2011 IL App (2d) 100379, ¶ 10, 959 N.E.2d 195. The Second District held a police dog's positive alert on a vehicle may provide the police with probable cause to search the vehicle and a passenger in the vehicle. Id. ¶¶ 9-10.

In addition, this court has stated the smell of cannabis in a vehicle by a police officer can justify the search of a passenger in that vehicle. Williams, 2013 IL App (4th) 110857, ¶ 34, 990 N.E.2d 916. Because the facts in this case are distinguishable from Fondia, we need not determine whether this court's holding in Fondia is still good law.

Another Weird Little Extra-Territorial DUI Arrest Case

Jul 13, 2016 07:00

Description:

People v. Reynolds, 2016 IL App (4th) 150572 (June).  Episode 195 (Duration 7:00)

This extrajurisdictional stop is actually legal because the original traffic infraction was a misdemeanor, something more than a petty offense

Issue

Defendant filed a petition to rescind her statutory suspension. She argued her arrest was improper because the stop occurred outside the city borders.

Defendant did not challenge her speeding as a basis for the initial stop.

Facts

Specifically, defendant challenged the officer's jurisdiction to arrest her because Southern View's municipal boundary did not encompass the northbound lane of Sixth Street. (Apparently, the southbound lanes of Sixth Street in the vicinity of where defendant's speed was clocked is in Southern View.)

Defendant filed an affidavit from the Springfield zoning administrator to prove the northbound lane of Sixth Street was not within the bounds of Southern View. The trial court granted rescinded the SSS based on lack of jurisdiction.

 During the stop, the officer smelled alcohol coming from defendant's car. He then discovered an empty bottle of whiskey.

She blew .231 into the PBT and refused to blow at the station.

Law

Way back in January we had another Weird Little Extra-Territorial DUI Arrest Case (Episode 160). 

Remember, in this extra-territorial arrest cases the rules and laws all are a big jumble. However, the underlying principle is that:

Although generally an officer can arrest a person outside its jurisdictional lines if we have a felony or a misdemeanor, but the officer is not allowed to stop a car outside its jurisdiction for a mere traffic infraction or other petty offense.

An officer from city A cannot stop a car in city B for a traffic violation that occurred in city B. When that happens we have an illegal stop. A motion to suppress then follows where a trial judge is likely to exclude all the subsequent evidence of intoxication.

See 725 ILCS 5/107-4(a-3)(1), (2).

The relevant portions of the arrest statute permit a stop outside an officer's primary jurisdiction if (1) the initial crime occurs within his jurisdiction or (2) an on-duty officer “becomes personally aware of the immediate commission of a felony or misdemeanor violation of the laws of this State.” 725 ILCS 5/107-4(a-3)(1), (2).

Holding

The reviewing court now says that the trial court was wrong.

The relevant portions of the arrest statute permit a stop outside an officer's primary jurisdiction if (1) the initial crime occurs within his jurisdiction or (2) an on-duty officer “becomes personally aware of the immediate commission of a felony or misdemeanor violation of the laws of this State.” 725 ILCS 5/107-4(a-3)(1), (2)

The evidence in the record shows Cathers observed and stopped defendant outside the bounds of Southern View.

As a result, section 107-4(a-3)(1) cannot serve as a basis for the stop…but Defendant was pulled over for driving 61 miles per hour in an area with a 35-mile-per-hour speed limit, or 26 miles over the speed limit. Traveling 26 miles-per-hour over the speed limit is a Class B misdemeanor. See 625 ILCS 5/11-601.5(a).

The officer personally observed the immediate commission of this offense. Neither party challenges defendant's speed. As a misdemeanor offense, the officer was justified in stopping defendant under the arrest statute.

Finding the stop by the officer was justified and authorized under the arrest statute, the trial court erred in granting the petition to rescind.

The Other Laws

Three different statutory sections quoted above apply to the issue in this case. Each section, by itself, appears susceptible to a single, plain, and ordinary interpretation.

Section 7-4-7 of the Municipal Code defines a single police district as territory which is embraced within the corporate limits of adjoining municipalities within the same county within this State (65 ILCS 5/7-4-7. Section 7-4-8 of the Municipal Code describes the powers of a police officer within a police district (65 ILCS 5/7-4-8).

Notably, section 7-4-8 states “police of any municipality in such a police district” (emphasis added) (65 ILCS 5/7-4-8 suggesting more than one municipality falls within a single police district. Both sections appear under the division entitled “Territorial Jurisdiction.” 65 ILCS 5/7- 4-1 to 7-4-8.

Under the plain and ordinary meaning of these sections, an officer has “full authority and power” in his own municipality and any adjoining municipality in the same county. Section 7-4-8 of the Municipal Code endows officers with “full authority and power” (65 ILCS 5/7-4-8) within any municipality in a police district.

While defendant attempts to construct an argument that section 7-4-8 conflicts with the arrest statute, section 104-7(a-3) of the Criminal Procedure Code, the reviewing court found no conflict. The arrest statute applies, as discussed below, to any jurisdiction in the State, whereas the Municipal Code provisions apply to extend the jurisdiction of police officers in a police district, defined as adjoining municipalities in the same county.

The appellate court also found that officer had jurisdiction solely based on the arrest section of the Criminal Procedure Code. On its face, section 107-4(a-3), quoted above at supra, affords police the jurisdiction to effect an arrest in any jurisdiction as long as one of the enumerated provisions applies. 

Drugged Driving Arrest Made By Officer With No Special Training

Jul 13, 2016 05:41

Description:

People v. Ciborowski, 2016 IL App (1st) 143352 (June). Episode 194 (Duration 5:40)

You don't always need a drug recognition expert on the scene to establish probable cause for a Drugged Driving DUI.

Facts

Defendant rear ended a car and causes a three car collision.

The officer ruled out alcohol and cannabis but noticed defendant had difficulty speaking, lethargic, and disheveled.

Then Defendant is asked if he was taking drugs and he admitted to taking Zoloft, Ambien, and Celexium.

Defendant failed SFTS and was arrested.

Officer's Training

The officer only knew that Ambien is taken to help people sleep.

He knew nothing about the other drugs, this particular drug mixture, and was not a drug recognition expert.

Issue

The defense challenged this arrest by an officer untrained in the recognition of drugs and made without the aid of a drug recognition expert at the scene.

Holding

The reviewing court, however, held that when defendant admitted taking Ambien and other drugs, the officer had probable cause to believe that it had something to do with the conduct that the officer observed.

There is no requirement that an officer have individualized suspicion of drugs and/or alcohol before arresting one for drugged DUI.

In addition to the officer’s training and experience, the facts observed at the time he arrested defendant constituted probable cause to support the arrest.

These were the observations: Defendant was the cause of the rear-end automobile accident that rendered his own vehicle inoperable and severely damaged. Defendant was driving the easternmost vehicle, and the other two vehicles involved in the accident were in front of him proceeding westbound. Defendant rear-ended the vehicle in front of him, causing his license plate to stick to the other vehicle.

Something Was Wrong With Him

Defendant also exhibited signs of being under the influence of drugs including: (1) dilated pupils, (2) deliberate and lethargic movements, (3) a disheveled appearance, (4) difficulty keeping his eyes open and a sleepy appearance; and (5) speech that was mush-mouthed and slurred.

Furthermore, defendant provided conflicting answers about where he lived, where he had been, and how the accident occurred. When asked for his insurance card, defendant repeatedly handed the officer his AARP card.

In addition, defendant failed each of the three field sobriety tests which the officer administered. Defendant nearly fell to the ground several times during the tests, two of which had to be terminated for safety purposes.

Defendant also admitted he was prescribed Zoloft, Celexium, and Ambien. These facts were ample for a reasonable person to believe that there was probable cause that defendant was under the influence of drugs to a degree that it rendered him incapable of driving safely.

See Also

You should also checkout my podcast with Sami Azhari where we talked about this exact issue.

It was podcast episode 184. Click here to see it now.

Can You Be To Emotionally Distraught To Enter a Plea?

Jul 11, 2016 06:21

Description:

People v. Bryant, 2016 IL App (5th) 140334 (May). Episode 193 (Duration 6:21)

Defendant said he was to emotionally distraught during his plea hearing to have acted knowingly and voluntarily. 

Can You Possess A Shank In Prison If You Can Prove Your in Danger?

Jul 6, 2016 05:42

Description:

People v. Boston, 2016 IL App (1st) 133497 (May). Episode 192 (Duration 5:42)

Was it error for trial court to deny defendant the necessity instruction for possessing a shank in jail when he could prove he was stabbed and in danger? 

June 2016 Illinois Criminal Law Round Up

Jul 6, 2016 29:43

Description:

In many ways this is the month that the judges (that is the high court judges) could do no wrong.  We had 2 significant cases released by the Supreme Court of the United States (SCOTUS) and 2 cases released by the Illinois Supreme Court.

 

Here's what you missed from the high court cases for June 2016:

SCOTUS

1. Utah v. Strieff

Discovery of a valid arrest warrant after an improper seizure sufficiently attenuates the taint of the bad stop such that suppression of the discovered contraband runs counter to the exclusionary rule. In other words, the cops can stop you illegally and if you have a valid arrest warrant while you are holding drugs, those drugs are going to be used against you. Go to case.

2. Birchfield v. North Dakota

There is a big difference between refusing to provide a breath sample after a DUI arrest and failing to give blood. States don't need a warrant for you to blow and they can charge you with an additionally crime if you refuse to blow. However, police will generally need a warrant to get your blood. If there is no warrant they can't charge you for refusing to give them your blood. Go to case.

Illinois Supreme Court

3. People v. Rizzo

It is constitutional to prohibit court supervision if you are  charged with driving more than 40 mph over the speed limit. Go to Case.

4. People v. McFadden

Prosecutors my use invalidated Aguilar AUUW's that have not been formally vacated as predicate offenses to support a new charge of AUUW by a Felon. Go to case.

...and Much More

June 2016 was hopping and sizzling for Illinois criminal law court decisions. Much was going on and much for us to keep up with. For example...

✓ We had 2 important state DUI decisions. One really got the private defense bar jumping up and down and the other one made some law on drugged driving cases. Can an officer not trained to detect drugged driving nonetheless make a drugged driving arrest?

✓ There was an interrogation done with a defendant detained more than 98 hours before seeing a judge

✓ A prison shank case, a recanting snitch case, one crime was declared unconstitutional, another unconstitutional sentencing provision declared constitutional again. Is the Illinois cyber stalking still good law?

✓ A case with a murderer who put his coworkers head in display freezer, (not making this up)!

✓ Somebody counted their days wrong in a speedy trial case. Was it the state or the defense?

✓ and much much more.

June Was Sizzling

Really, there is way too much going on in June to summarize here but...

Don't worry.

Just download the June case list.

Read the top line (one sentence) summarizing the case. Only invest more time in those cases that seem interesting or look like they can impact a case you are working on.

I've already read the cases and pulled out the most important lessons from each. Please take my work.

 

Download

Don't waste your precious summer evenings sifting through cases that may not even help you.

Your June Illinois criminal case List is waiting for you below. Click the image  below to download your case list right now:

.

If You Haven’t Dated For Over 15 Years Are You Still A “Household Member”?

Jul 2, 2016 06:59

Description:

People v. Gray, 2016 IL App (1st) 134012 (May). Episode 190 (Duration 6:58)

The definition of “household member” was unconstitutionally applied to this defendant (dating relationship had ended 15 years earlier) this in turn allowed the State to improperly get into other crimes evidence. 

The Type of Batson Challenge You May Never See

Jul 1, 2016 07:29

Description:

Foster v. Chatman, SCOTUS No. 14–8349. Argued November 2, 2015—Decided May 23, 2016. Episode 189 (Duration 7:29)

Prosecution makes it pretty clear that they struck black jurors because of their race.

Background

In a 7-1 decision written by Roberts (Thomas was the lone dissent). The defense had obtained prosecutor's files years after he was convicted of strangling and raping a 79 year old victim.

The files had hand written “B”s in front of all the black jurors.

Batson Challenge

Ultimately, the Court found that, while all of the five potential black jurors had been kept off the jury for racial reasons, the proof was clear at least as to two of those jurors that there was no reason but race for excluding them.

“Two peremptory strikes on the basis of race are two more than the Constitution allows,” Roberts wrote.

Non Race Reasons

The prosecution had an array of excuses for striking these two jury members, including:

she had a job working with disadvantaged youth she kept looking at the ground she gave short answers she appeared nervous she was too young she misrepresented her familiarity with the location of the crime she failed to disclose her cousin was arrested on a drug charge she was divorced she had two children and two jobs the defense asked her few questions and she did not ask to be excused from jury service.

Many other jurors accepted by prosecutors had the same attributes as that juror and the second juror whose elimination was at issue.

The State tried to argue that the markings in their file were they because they wanted to be careful and mindful of a Batson issue, but Roberts did not buy that for a second.

Instead, he noted that the argument was made for the first time in the U.S. Supreme Court and it “reeks of afterthought.”

Conclusion

The sad thing here is that 4 of the black stricken members were found to be “justified” ie had valid race neutral reasons and this case really suggests the facts have to be way out there before a judge is likely to find that a Batson violation has indeed occurred.

Can an Invalidated Aguilar Conviction be Used in Aggravation in a Sentencing?

Jun 30, 2016 04:52

Description:

People v. Billups, 2016 IL App (1st) 134006 (May). Episode 188 (Duration 4:52)

Trial counsel was ineffective for trial court's consideration of two convictions later ruled unconstitutional.

You Now Better Vacate Those Aguilar Gun Convictions Used as Predicates For More Serious Crimes

Jun 29, 2016 05:17

Description:

People v. McFadden, 2016 IL 117424 (June). Episode 187 (Duration 5:17)

Defendant questioned the validity of his UUW Felon conviction because it was predicated on a AUUW invalidated under Aguilar.

Facts

Defendant robbed three people. He plead guilty to UUW Felon and acknowledged he had a prior AUUW conviction. People v. Aguilar came along and invalidated this form of AUUW.

Subsequently, courts have been grappling with the legal effect.

What if the conviction is not actually vacated?

Here, defendant is not seeking to vacate his 2002 conviction for AUUW. Rather, defendant contends that the State failed to prove all of the essential elements of AUUW Felon and sought to have that conviction reversed.

However, UUW Felon only requires a defendant to have a felon status. The statute does not require proof of a specific felony conviction.

Yes. Aguilar made a facially unconstitutional ruling. Thus, the statute is void ab initio meaning that the statute was constitutionally infirm from the moment of its enactment and, therefore, is unenforceable.

The Rule

However, the Illinois Supreme court followed the feds in holding that a prior UUW conviction, if not formally vacated in court, may be used as a predicate offense for other charges.

There is nothing absurd or unjust or unreasonable about requiring a person who believes he has been wrongly convicted of a felony to clear his status through the judicial process before being allowed to possess a firearm.

The Rationale

The UUW by a felon statute represents a considered and deliberate decision to require that a prior felony conviction be vacated or expunged before a firearm is possessed. Although Aguilar may provide a basis for vacating defendant’s prior AUUW conviction, Aguilardid not automatically overturn that judgment of conviction.

Holding

Thus, at the time defendant committed the UUW Felon offense, defendant had a judgment of conviction that had not been vacated and that made it unlawful for him to possess firearms. Thus, he had the required “felon status” as required by the statute he was convicted of.

Thus, defendant’s prior conviction properly served as proof of the predicate felony conviction for UUW by a felon.

Practically, the principle that the void ab initio doctrine renders a facially unconstitutional statute unenforceable only means a possible predicate felony conviction for UUW by a felon is only subject to vacatur.

Without an actual vacatur, the conviction may properly serve as a predicate felony for other charges.

Implied Consent Still Alive and Well, Forced Blood Draws Still Require a Warrant

Jun 25, 2016 14:32

Description:

Birchfield v. North Dakota, SCOTUS No. 14–1468. Argued April 20, 2016—Decided June 23, 2016. Episode 186 (Duration 8:34).

May the State criminalize the failure to comply with implied consent laws?

3 Cases

There were actually 3 consolidated cases each of them turning on whether or not the state could criminalize the failure to comply with implied consent laws.

Two defendants were threatened with prosecution for failure to give blood; one defendant was charged for not blowing.

Issue

Thus, success for all three petitioners depended on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate.

If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.

Connected Issues

SCOTUS, then had to determine if the searches demanded in these cases were consistent with the Fourth Amendment. This is so because when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.

If such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding.

Analysis - Search Incident To Arrest Doctrine

The court applied the search incident to arrest doctrine and noted it is a categorical rule. Since breath tests do not “implicate significant privacy concerns”, (no more intrusion than blowing up a party balloon). Blood tests are a different matter.

Yes, McNeely distinguished between “easily disposable evidence” over “which the suspect has control” and evidence, like blood alcohol evidence, that is lost through a natural process “in a gradual and relatively predictable manner."

But McNeely concerned only one exception to the usual warrant requirement, the exception for exigent circumstances, that exception has always been understood to involve an evaluation of the particular facts of each case.

Here, by contrast, the search-incident-to-arrest exception is duly at play.

Holding Breath Tests

Having assessed the effect of BAC tests on privacy interests and the need for such tests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.

The impact of breath tests on privacy is slight, and the need for BAC testing is great.

Blood Tests

Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.

Thus, the police generally will need a warrant to get blood from a driver. The court said there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Holding: Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, the court said that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.

Thomas Guts the Exclusionary Rule

Jun 23, 2016 13:49

Description:

Utah v. Strieff, SCOTUS No. 14–1373. Argued February 22, 2016—Decided June 20, 2016. Episode 185 (Duration 13:49)

Does the discovery of a valid arrest warrant sufficiently intervene to break the causal chain between an unlawful stop and the discovery of drug-related evidence?

Facts

Officer has a tip of a drug house.

Over a week he sees people coming in and out of the house. Then he sees defendant come out of the house. Follows him to a gas station where he stops him.

Discovers defendant had a warrant. Arrests him and finds drugs.

Holding

SCOTUS said that even though the stop was illegal no evidence needed to be suppressed because the search warrant sufficiently attenuated the taint of the bad stop.

Rationale Exclusionary Rule

In the 20th century the exclusionary rule became the principal judicial remedy to deter Fourth Amendment violations.

But the significant costs of this rule have led the court to apply it only where its deterrence benefits outweigh its substantial social costs.

Suppression of evidence has always been their last resort, not our first impulse. The attenuation doctrine holds that evidence discovered after an illegal seizure is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”

Unconnected

Thomas wrote that the warrant discovered after this stop was entirely unconnected to the stop itself...and the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.

Purposeful & Flagrant

Here the officer was at most negligent.

The officer's errors in judgment hardly rise to a purposeful or flagrant violation of Strieff ’s Fourth Amendment rights.

Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct.

Applying these factors, the majority held that the evidence discovered on Strieff ’s person was admissible because the unlawful stop was sufficiently attenuated by the preexisting arrest warrant.

See the dissent for a strong reaction.

Sami Azhari Answers Questions About Driving Under The Influence of Drugs (Drug DUI)

Jun 22, 2016 23:07

Description:

Did you know the actual and full title to Illinois’s DUI statute is…

“Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.”

See 625 ILCS 5/11-501.

Though driving under the influence of alcohol is by far the most common type of DUI, we ought not forget about the drug DUI’s.

I would describe the Drug DUI sections this way:

► 625 ILCS 5/11-501(a)(3) prohibits while driving under intoxicating compounds. For example, this section deals with aerosol cans, cleaning agents, and any other substance not thought of as a “drug” yet clearly intoxicating.

► 625 ILcS 5/11-501(a)(4) prohibits driving on drugs if you can’t do it safely. Usually, we are talking prescription drugs or any drug that has not been labeled as a controlled substance.

► 625 ILCS 5/11-501(a)(6) prohibits driving whenever there is any amount of a controlled substance (including marijuana) in a person’s body. This does not actually require proof of intoxication.

Crucial and important differences are buried within the Drug DUI law and cases.

Illinois criminal law attorney Sami Azhari agreed to sit down with us to help identify some of the crucial features of drug DUIs.

[sami’s background]

 

In podcast Episode 184 of the Criminal Nuggets Podcast Sami Azhari…

✓ Reveals questionable short-cuts a judge may take when confronted with a drug DUI.

✓ Provides some specific details on what a drug recognition expert can and cannot do in court.

 

✓ Defines the 12 steps of every drug recognition expert should be taking when evaluating a suspect in the field.

 

✓ Tells us the truth about how common drug recognition training is among patrol officers.

✓ Highlights a crucial legal difference between prescription drugs and illegal drugs that can get a non-lawyer in serious legal trouble.

✓  Answers the question: Do you know how much of an officer’s training with standard field sobriety testing carries over to drug intoxication investigations?

✓ Discloses the sneaky way state prosecutors may use a drug recognition expert in court.

✓ Outlines the scene: An officer comes upon a driver who has just had a serious accident. The driver is incoherent, can’t put logical sentences together, is non-sensical, has terrible balance, and is obviously under the influence of something. When alcohol is ruled out this is NOT THE TIME to assume drugs are involved.

✓ Tells about the A.R.I.D.E. training program and how it differs from traditional drug recognition training.

✓ These and many other important topics are covered.

Here are the links to some of the cases covered by Sami Azhari

People v. Foltz, 403 Ill. App. 3d 419, 424 (2010)

People v. Vanzandt, 287 Ill. App. 3d 836, 845 (1997)

But also check out…

People v. Ciborowski, 2016 IL App (1st) 143352 (June)


I think we need Sami to come back and help us make sense of Ciborowski.

It Is Constitutional To Not Allow Court Supervision For Speeding 40 MPH Over the Limit

Jun 21, 2016 08:24

Description:

People v. Rizzo, 2016 IL 118599 (June). Episode 183 (Duration 8:23)

Is it unconstitutional to prohibit court supervision for a strict liability traffic offense?

No way man, says the Illinois Supreme Court.

Facts

Defendant was charged with violating section 11-601.5(b) of the Vehicle Code (625 ILCS 5/11-601.5(b)(driving 40 miles per hour or more in excess of the speed limit- a Class A misdemeanor) He was doing 100 in a 55 zone.

Trial Court

The trial court concluded that prohibiting court supervision for this crime was “cruel and degrading punishment” and therefore unconstitutional. The Illinois Supreme Court saw it differently. The high court found the trial court’s opinion and order to be an ambiguous analysis and had ill-defined concerns en route to its conclusion that section 730 ILCS 5/5-6-1(p)is unconstitutional.

A proportionate penalties challenge can be made if a defendant can argue that the “penalty for a particular offense is too severe under the ‘cruel or degrading’ standard or that the penalty is harsher than the penalty for a different offense that contains identical elements.”

It appears a major reason the trial court found for the defendant was because of its concern for the collateral consequences of conviction…and maybe didn't like that the statute was tieing the court's hands.

Illinois High Court

The trial court completely disagreed, writing:

“In our view, the legislature’s prohibition of the dispositional option of supervision, in this context, does not even approach the “cruel and degrading” standard requisite for a finding of unconstitutionality. We do not believe our society has devolved to the permissive point that the legislature is obligated to provide an escape hatch for those who have shown such a blatant disregard for posted speed restrictions. We have, in the context of our community’s evolving standards of decency, reviewed and considered the gravity of defendant’s alleged offense in connection with the severity of the statutorily mandated sentence then set by the legislature. Our consciences are not shocked by the prohibition, individually or collectively. It appears the circuit court reached its result through application of the proportionate penalty analysis this court rejected in Sharpe.”

The trial court also erred in in its improper consideration of possible collateral consequences of a misdemeanor conviction, such as a requirement of disclosure on job or loan applications. None of these consequences are considered punishments. Trial court was reversed.

Prosecutors May Have To Rethink Gun Convictions After This Confrontation Clause Ruling

Jun 16, 2016 05:14

Description:

People v. Diggins, 2016 IL App (1st) 142088 (May). Episode 182 (Duration 5:14)

Is an Illinois State Police certified letter saying Defendant has no FOID testimonial in nature?

Facts

Defendant was convicted of AUUW.

The State admitted a “certified letter” from the Firearm Service Bureau of the Illinois State Police, which stated defendant was denied an FOID because he had a pending felony charge.

The State argued it was a self-authenticating document because it was “a certified document with a seal bearing the signature and seal of the office.”

Defense counsel objected, stating that this was not a document kept in the normal course of business, and rather it was the result of a specific request by the State. The trial denied the objection because “the document speaks to a review of documents kept in the normal course of business” and it was certified document of a governmental agency.

Law

“Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004).

In regards to what is a testimonial statement the Court said:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,  extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, [citation] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 51-52.

Holding

However, this certificate was clearly testimonial in nature.

It was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Thus, absent a showing that the witness was unavailable to testify at trial and that defendant had a prior opportunity to cross-examine him, defendant was entitled to be confronted with the witness at trial.

Reversed and remanded for a new trial.

Discovery of a Corrupt Trial Judge Doesn’t Mean Every Single Case Must Be Reversed

Jun 15, 2016 07:35

Description:

People v. Gacho, 2016 IL App (1st) 133492 (April). Episode 181 (Duration 4:34)

Postconviction petition alleging corrupt trial judge is dismissed.

Corrupt Trial Judge

No joke. The trial judge conducting this murder trial actually was convicted of accepting bribes. See this article

The Rule

The fact that the judge was bribed in some cases does not establish that he was not impartial in others. The judge's pattern of bribe taking cannot alone support an inference that he engaged in compensatory bias in the defendant's case. A defendant must still “who alleges that his trial judge's corruption violated his right to a fair trial must establish (1) a ‘nexus' between the judge's corruption or criminal conduct in other cases and the judge's conduct at [the defendant's] trial; and (2) actual bias resulting from the judge's extrajudicial conduct.” See the dissent for a strong counter argument.

Facts In This Case

However, defendant's case was not a “fixed” case. The gist of the claim was that a codefendant paid the judge $10,000 for a not guilty in his case.

That meant the judge could not be fair in defendant's case.

Also, defendant said he could not raise $60,000 to pay the judge and because of that the judge could not have been fair.

Holding

In sustaining the dismissal of this postconviction petition, the reviewing court found that defendant failed to produce any direct evidence that the judge was, in fact, bribed by the codefendant. The trial attorney denied that he ever talked to defendant or his family about a $60,000 bribe & defendant's story about the codefendant saying he paid $10,000 but got convicted anyway also does not add up.

If the judge possessed a pecuniary interest in the outcome of the defendant's trial, the defendant would be entitled to relief under the Act in the form of a new trial. Defendant did not prove this up sufficiently.

See also Episode 152,  Brady Break Down: Crooked Cops But No Duty To Disclose.

180.mp3

Jun 14, 2016 06:40

Description:

May 2016 Illinois Criminal Case List Now Available

Jun 13, 2016 29:45

Description:

The May 2016 Illinois criminal case list is now available for download. There is one controversial DUI case here you don’t want to miss. The podcast round-up for this month is the month is 29 minutes 44 seconds long.

 

 

The Cases

Here are the top 12 criminal law cases from the Illinois court system (and one SCOTUC case) for May 2016. There were 28 published cases released this month.

For a brief summary of all the cases, make sure to download a copy the case list by clicking the orange bar above. For now, here is a quick overview:

1. People v. Guillermo

Hands down this is the most controversial case released this month. Are DUI defense attorneys crying foul over nothing or do they have a legitimate issue. See alsoEpisode 177 where Thomas Glasgow Explains Why DUI Lawyers Are Saying, “Court Got This All WRONG”Go to case.

2. People v. Swanson

This case is a credibility contest between defendant’s wife and the police. Check it out to see who the judge believed. Go to case.

3. People v. Hernandez

Illinois Supreme Court puts to bed this proportionate penalties challenge revolving around the proper definition for “dangerous weapon.” Go to case.

4. People v. Billups

Defense counsel is ineffective for allowing the trial judge to commit trial error. Just when you think we all have People v. Aguilar etched in our brains… Go to case.

5. In re H.L.

Judge fails to say these “magic words” which leads to a reversal. Go to case.

6. People v. Walsh

Defendant takes a creative approach to interpreting the gun add-on section. Reviewing court has to really look at exactly what factors are appropriate to consider when applying the 20 to life term. Go to case.

7. People v. Warren

Another fines and fees case! But maybe you want to take a look at this one because it involves a drug case. Don’t we all have a drug case? Go to case.

8. People v. Smith

Can you believe it? This is another medical doctor-sexual assault case. We had one last month as well! This time the issue deals with determining the appropriate statute of limitations. Go to case.

9. Foster v. Chatman 

This is the SCOTUS case. See how the initial “B” tanked the case for the prosecution. Clarence Thomas was the lone dissent in this successful Batson challenge made by the defense. Go to case.

10. People v. Diggins

State has confrontation clause issues when they try to use a certified letter from the State Police saying the defendant did not have a valid FOID card. Do prosecutors have to rethink how they approach these gun cases? Go to case.

11. People v. Boston

Interesting question. Is it ever legal for an inmate to possess a shank in prison? Go to case.

12. People v. Gray

The definition of “house hold member” is unconstitutionally applied to this defendant. The case describes the unique fact pattern that lead to the reversal of this domestic violence conviction. Go to case.

13. People v. Coto

It is settled. Defendant has a right to the reasonable assistance of counsel in a postconviction petition when he is appointed counsel AND when he contracts and hires his own private attorney. Go to case.

Download

Hey, if you want to check out a brief summary of all 29 of the published Illinois criminal law cases for May 2016 just hit the banner below:

 

 

Shackling Defendant During a Bench Trial is Strongly Discouraged

Jun 7, 2016 07:31

Description:

People v. Williams, 2016 IL App (3d) 130901 (April). Episode 178 (Duration 7:30)

Shackling of defendant during bench trial in this child sex case leads to reversal.

The Boose Standard

In general, shackling the accused should be avoided. People v. Boose, 66 Ill. 2d 261, 265 (1977).

“Most of the courts that have considered the question have held that an accused should never be placed in restraints in the presence of the jury ‘unless there is a showing of a manifest need for such restraints.'” See Boose, 66 Ill. 2d at 266.

A defendant may be shackled when there is reason to believe that

he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial.

Further, the trial judge should state for the record his reasons for allowing the defendant to remain shackled, and he should give the defendant's attorney an opportunity to present reasons why the defendant should not be shackled.

Factors 

Factors to be considered include, but not limited to…

Seriousness of the present charge Defendant's temperament and character Defendant's age and physical attributes Defendant's past record Past escapes or attempted escapes Evidence of a present plan to escape Threats to harm others or cause a disturbance Self-destructive tendencies Risk of mob violence or of attempted revenge by others Possibility of rescue by other offenders still at large Size and mood of the audience Nature and physical security of the courtroom and Adequacy and availability of alternative remedies But This is a Bench Trial?

The number one reason to not shackling an accused during trial is to prevent great prejudice against defendant in the eyes of the trier of fact.

Does this concern during a bench a trial?

Although the possibility of prejudicing the jury is a factor to be considered, the reasons for forbidding shackling are not limited to trials by jury.

Facts in This Case

Here, there is no indication that the trial court conducted a Boose hearing before keeping the defendant in shackles during his bench trial.

Thus, the defendant proved a due process violation which amounted to error by showing that he was required to be restrained without the court having first determined that it was necessary.

OK, But Was Reversal Warranted?

Reversibility under plain error requires a showing that the evidence was closely balanced or that the error was so serious that it affected the fairness of his trial and challenged the integrity of the judicial process.

Reversal was required because this was a close case as it was a credibility contest between Defendant and the child victim. 

No Boose Hearing

There is no indication that the the trial court conducted any type of a Boose hearing. In fact, the trial court suggests that the defendant was in shackles due to a blanket policy of the court.

Since there was no evidence of any threats or disturbances in the record, the trial court made the statement that suggests a blanket policy, and there was no hearing for which the court could remand for a more complete record, reversed and remanded for a new trial.

Other Issues

Also, this child is allowed to testify in the judge's chambers which could also have been a problem. 725 ILCS 5/115-11 permits a limited closure of a courtroom during the testimony of minors who are the victims of certain sex crimes. See also People v. Falaster, 173 Ill. 2d 220, 226 (1996). The trial court must make a finding that anyone with an interest in the case would also be allowed to go into chambers for the testimony.

Thomas Glasgow Explains Why DUI Lawyers Are Saying, “Court Got This All WRONG"

Jun 3, 2016 29:26

Description:

It is quite easy to see that the case of People v. Guillermo has caused quite a little commotion among the Illinois criminal law DUI bar.

Top Illinois DUI lawyers all had the same immediate reaction after reading this case:

“The court got it wrong.”

It’s been awhile since a case has come down that has caused this much opinionated reaction within Illinois courthouses.

I usually like to take a more tempered approach to cases.

- Maybe it's just the super cautious attorney in me.

- Maybe I over do it with seeking out the other side’s opinion, or

- Maybe I’m just adverse to “legal friction” between myself and my government lawyer friends.

Either way, I really did not understand why the sentiment against the decision in this case was so strong.

At first glance, it just looked like the defense bar had something taken away from them that they were use to having. I thought the reaction was no different than the average sentiment from the “losing” side.

...but I scratched a little deeper to see if I was missing something.

I called upon a good friend of the podcast, Thomas Glasgow, to walk me through it.

Thomas has authored some reference materials on DUI’s, he has an extensive practice dealing with licensing matters with the Illinois Secretary of State, and he has handled roughly 4,500 DUI cases.

I felt quite comfortable asking Thomas to help me understand if there was some substance behind the almost unanimous sense of outrage to the decision in this case.

...or are we on the defense side just acting like big, whiny babies?


Listen in while Glasgow unravels this thing.

Statutes And Cases Discussed By Glasgow

625 ILCS 5/118.1(b)

625 ILCS 5/11-501.1(h)

People v. Moreland, 2011 IL App (2d) 100699

People v. Madden, 273 Ill. App. 3d 114 (1995)

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Prosecutor Probably Had a Conflict of Interest

Jun 2, 2016 12:08

Description:

People v. Kibbons, 2016 IL App (3d) 150090 (April). Episode 176 (Duration 12:07)

Prosecutor on this aggravated DUI represented defendant when he was charged with his first DUI. 

Issue

Is this a conflict of interest?

Well the defense argued that his plea should be vacated because there was a per se conflict of interest on the part of the State’s Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution.

…But First Let's Talk Conflict of Interest

In Illinois the courts have identified three per seconflicts of interest specific to criminal defense attorneys:

(1) when defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution;

 

(2) when defense counsel contemporaneously represents a prosecution witness; and

(3) when defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant. 

see ¶ 216. See also Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself? and People v. Poole, 2015 IL App (4th) 130847 (September 2015)

With a per se conflict there is no waiving of it. Reversal is automatic and there is no requirement of a finding of an actual conflict. 

So this defendant definitely had a legitimate (probably winnable issue) issue on appeal.

Issued Waived

However, the court did not reach the merits of the claim. The defendant did not file a notice of appeal within 30 days of the denial of the motion to reconsider his plea.

Instead, he filed what he should have filed initially, that being a motion to vacate his guilty plea under Rule 604(d).

While that motion was filed when the trial court still had jurisdiction, it was not a timely motion under Rule 606(b), and the court had no discretion to forgive the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19 (motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict, was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would render the term “timely” in 606(b) meaningless).

Since the notice of appeal was untimely, the court lacked lack jurisdiction over the appeal.

Dangerous Weapons for Armed Violence Defeats Proportionate Penalties Challenge

Jun 1, 2016 07:13

Description:

People v. Hernandez, 2016 IL 118672 (May). Episode 175 (Duration 7:12)

The common-law definition of “dangerous weapon” found in the armed robbery statute is broader than the definition of “dangerous weapon” in the armed violence statute.

40 year extended sentence is constitutional (defendant is doing 80 in total).

Facts

Defendant was found guilty of armed robbery “while armed with a dangerous weapon, a bludgeon,” under 720 ILCS 5/18-2(a). Defendant used big heavy medal shears to hit an elderly couple over the head and force them to open a safe.

Issue

Defendant's claim is that his 40-year, extended-term, Class X sentence imposed on remand for armed robbery violated the proportionate penalties clause because it had the same elements as the lesser Class 2 offense of armed violence with a Category III weapon.

Ligon Case

This issue has already been settled in the February 2016 of People v. Ligon, 2016 IL 118023.

There the court said that many objects, including the BB gun defendant possessed in this case, satisfy the ‘dangerous weapon’ element of AVH/DW, but not the ‘Category III weapon’ element of armed violence with a category III dangerous weapon.

Dangerous Weapon (Common Law)

“Dangerous weapon” is not defined in either the armed robbery statute at issue here, or the AVH/DW statute at issue in Ligon, but is derived from common law.

A dangerous weapon is a question of fact and includes any object sufficiently susceptible to use in a manner likely to cause serious injury. Therefore, the definition of dangerous weapon for purposes of the armed robbery statute includes not only objects that are per se dangerous, but objects that are used or may be used in a dangerous manner.

Dangerous Weapon (Armed Violence)

In contrast, for purposes of the armed violence statute, a person is considered “armed with a dangerous weapon” when he or she “carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(a).

Category III weapons are defined as “a bludgeon, black-jack, slungshot, sand-bag, sand club, metal knuckles, billy, or other dangerous weapon of like character.” Thus, Category III dangerous weapons for purposes of the armed violence statute are defined by the statute and are therefore limited to the weapons identified by the statute.

Any Race Neutral Reason is Sufficient To Beat A Batson Challenge

May 25, 2016 04:14

Description:

People v. Shaw, 2016 IL App (4th) 150444 (April). Episode 174 (Duration 4:14)

Trial court properly accepted race neutral reasons for excluding minority jury members.

Facts

Defendant is African American and was on trial for drug charges. The prosecution excluded two African Americans from the jury.

The State said that “when the question came up could you find the defendant guilty, there was a juror that there was a long pause, there was a look, the Court actually had to repeat the question and that's in the transcript.”

In regards, to the second African American the state recalled that it had initially sought to remove her for cause because she was friends with defendant's cousins and nieces.

In addition, the State noted her boyfriend had pending cases and was represented by the public defender's office.

Any Race Neutral Reason

The trial court found that defendant has not shown purposeful discrimination. The Court finds that the prosecutor was credible and that the prosecutor's demeanor did not show discriminatory intent, but merely showed strategic decisions.

Furthermore, the Court finds that the two juror's demeanor can be credibly said to have exhibited the basis for the strike attributable to the jury by the prosecutor.

Speedy Trial Clock Has A Big-Ol Pause Button

May 24, 2016 06:55

Description:

eople v. Lilly, 2016 IL App (3d) 140286 (April). Episode 173 (Duration 7:44)

What happens when defendant demands a trial within 120 days but continues to file motions?

Although, defendant was adamant about wanting his 120 days, he also was pretty persistent with his pro semotion filing.

Speedy Trial Right

“For purposes of a speedy-trial question, a delay is charged to [a defendant] where his act in fact causes or contributes to the delay.”

Further, our supreme court has held that where a defense attorney requests or agrees to a continuance on behalf of a defendant, the resulting delay is attributable to the defendant even if the defendant did not agree with the continuance.

See 725 ILCS 5/103-5(a).

Facts

Here a new public defender was appointed to represent defendant and he simply could not be ready for trial on the date that already had been set. Where a defendant fails to “promptly repudiate an attorney's unauthorized act upon receiving knowledge of the same, the defendant effectively ratifies the act.” Further, “an agreed continuance tolls the speedy trial period *** .” “[A]n express agreement to a continuance on the record is an affirmative act attributable to the defendant.”).

Defendant failed to promptly repudiate defense counsel's actions.

Indeed, defendant responded that it was “fine” when the trial court told defendant that the motion for bond reduction would be heard the following week.

Holding

Although defendant was saying he wanted his 120 he was still agreeing to continuances and requesting bond reduction hearings; these dates were all attributed to him.

Any type of motion filed by defendant which eliminates the possibility that the case could immediately be set for a trial also constitutes an affirmative act of delay attributable to defendant. As defendant's motion needed to be resolved, it eliminated the possibility that the case could immediately proceed to trial.

Further, the court could not construe defendant's subsequent statement that he wanted to “use [his] 120” as an objection to the continuance.

How To Correctly Invoke a Speedy Demand

Section 103-5(a) places the responsibility on a defendant to take affirmative action when he becomes aware that his trial is being delayed by objecting to the delay via a written demand for trial or an oral demand for trial on the record in order to prevent the speedy trial clock from tolling.

“Defendant's contention illustrates what the Cordell court sought to prevent, the use of section 103-5(a), not as a shield to protect defendant's right to a speedy trial, but as a sword to defeat his conviction.”

Prosecutor Probably Had a Conflict of Interest June 1, 2016 By Samuel Partida, Jr. (Edit) People v. Kibbons, 2016 IL App (3d) 150090 (April). Episode 176 (Duration 12:07) Prosecutor on this aggravated DUI represented defendant when he was charged with

May 24, 2016 07:06

Description:

People v. Johnson, 2016 IL App (4th) 150004 (April). Episode 172 (Duration 7:05)

Defendant is convicted on two counts of predatory criminal sexual assault based on the child's testimony and her 115-10 statement.

Facts

The child testified that her father licked his fingers and inserted them into her private part.

In the recorded statement she also said that he put his private part in her private part, but on the stand she only testified to the digital penetration.

115-10 Statement

The 115-10 statement is substantive so defendant was properly convicted on both counts.

In Crawford, the Court dispensed with the “amorphous notions of ‘reliability' ” that governed the Roberts Court's confrontation clause analysis.

Instead, the Court held that, regardless of a statement's reliability, the confrontation clause bars the admission of any out-of-court statement that is “testimonial,” unless (1) the statement's declarant is unavailable and (2) the defendant was afforded a prior opportunity for cross examination.

Therefore any case law before Crawford suggesting that 115-10 statements need to be narrowly construed are now rejected.

The Illinois Statute

Section 115-10 requires the trial court to “find[]” that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” 725 ILCS 5/115- 10(b)(1).

The statute does not require that those findings be made in writing, nor does it require those findings to contain any specific level of detail.

The court merely tracked the language of the statute and that was found to be sufficient.

Holding

The court's unsupported conclusion that the child's statement was “reliable” met the constitutional standard under Crawford. Court need not give its reasoning in written form.

Part III With Thomas Glasgow | Conceal And Carry May Come With Civil Law Consequences

May 20, 2016 25:24

Description:

In Part III of this discussion on the Illinois conceal and carry law, Thomas Glasgow finishes up with the criminal liability one may be exposed to when things go wrong. However, just when you think you may have escaped criminal liability, you better be thinking about the civil consequences of your actions.

To to Show Notes.

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Again, you’ll hear the same theme ringing throughout this discussion:

“An ounce of prevention is worth a pound of cure.”

Thomas really walks us through the ringer and enlightens us on important factors we likely have not even considered.

In Part II Thomas Explains…

✓ After an interrogation is over only one of two things can happen:

You get charged. You don’t get charged. (If you prefer this one you may want an attorney in there with you.)

✓ Do you know how you’ll handle yourself during an integration?

✓ You ever notice how words can sometimes have a double meaning? (I wonder if that might come up in an interrogation?)

✓ After you get arrested have you thought about: What kind of bond you’ll you need? Where will you get the bond money? How will you pay for an attorney? How long will your case be tied up in the criminal justice system?

✓ Everything you need to know about making a case for self defense.

✓ Exactly when you are authorized to respond with deadly force and when you are not. How you can respond when a burglar is in your home.

✓ All 911 calls are recorded. This can really be used to help you or to hurt you, depends on how you handle the call.

✓ Do you know what to do when the police get there?

✓ The sneaky things a burglar may do to trick you into exposing yourself. (Tom identifies this little trick and shows you how not to get fooled.)

✓ The simple fact is that police often get shot by scared homeowners. Tom explains how you’ll know it's safe to put your gun away. (Let’s face it, if you shoot a cop it doesn’t matter how big a victim you were that night.  You are going to spend some nights in jail.)

✓ You better get over it. It’s going to happen. The family of a robber will have NO qualms about suing you for shooting their scummy loved one. You got to be ready for that.

✓ Huray! You managed to avoid getting arrested for a “good” shooting. Congratulations. Now it's time to get ready for the civil law portion.

✓ Why even the most obvious, "not your fault" self defense shooting will still have a police interrogation and why you can’t afford to blow it off. Yes, you still should have an attorney there with you even though you are completely innocent and the police have assured you are not “under arrest” or being charged.”

✓ Do you know exactly how many Illinois exonerations based on false confessions there have been? Thomas knows.

✓ Will you be ready to handle the highly trained, skillful detectives who have been through hundreds of similar interviews? How many will you have under your belt?

✓ Do you have a duty to tell an officer you are carrying a gun? Should you tell?

✓ Why the words, “I have a gun” probably are never the right words to use.

✓ The simple fact is that most home insurance policies do not cover incidents involving your gun even if you lawfully own it. Do you know what you can do to cover this gaping hole in liability?

✓ Who are the absolute worst types of witnesses that can hurt your civil case and who are absolutely the best types of witnesses you want on your side.

✓ How is a “reasonable shot” determined in court?

✓ The one thing you probably aren’t thinking about when you pick your firearm’s instructor, but definitely should be thinking about.

✓ How much gun training is enough gun training?

 If you missed part I or part II of this informative discussion click below to listen to them now.

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Part II With Thomas Glasgow | How Conceal and Carry Can Go Wrong

May 19, 2016 36:29

Description:

Part II With Thomas Glasgow | What To Tell Your Clients About What Can Happen When Things Go Wrong With Conceal and Carry

 

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In part II of this discussion on the illinois conceal and carry law we jump much deeper into advising clients on what can happen when things go terribly wrong.

Obviously, the point here is that an ounce of prevention is worth a pound of cure.

Thomas really walks us through the dark side and enlightens us on important factors we likely have not even considered.

In Part II Thomas Explains…

✓ There is a range of crimes you may be exposed to ranging from least serious to the most serious of all.

✓ What happens if you violate the “conceal” part of conceal and carry.

✓ Pulling it out can be considered an assault?

✓ Conceal and carry is not “conceal, carry, & fire,” what happens when the weapon is actually fired.

✓ The range and types of charges associated with aggravated discharge

✓ What kind of liability your exposed to for “accidental” discharges.

✓ What it means when the law says that “bullets follow their intent”.

✓ Why you should know your backstops.

✓ When things really go wrong a conceal and carry permit won’t immune you from a murder charge.

✓ That 45-60 years can be really sobering.

✓ Why it may pay off to talk to an attorney before you get your permit and before things go wrong.

✓ What types of self defense claims will and won’t be available for you when you get arrested for an incident that involved your gun that you had a permit to carry.

✓ When it comes to preventing a forcible felony minding your own business may be the way to go.

✓ Defense of another should be limited to only some very specific type of people.

✓ Defending yourself also comes with its own complicated considerations.

✓ That when you shoot someone they always turn out to be the next Nelson Mandela or Mother Teresa.

✓ With his own real life examples situations where things went terribly wrong.

✓ When your right to self defense dissipates and disappears.

✓ That when you're carrying being the calmest guy in the room is going to help you in court.

✓ What you should do in those moments immediately after an event. (Seriously, you need to think about this way before anything actually happens so that when and if it does you are following a known protocol.)

✓ Securing your scene is not just a tv thing; there are serious reasons why you’ll want to do this.

✓ What to say when you pick up the phone and dial 9-1-1.

✓ Why a description of yourself & and what you look like may save your life.

✓ The only certainty after an event is that you ARE GOING TO GET ARRESTED; there is no “conceal and carry” get out of jail card. (The point is that Thomas really walks us through the process and prepares you for what happens after the handcuffs go on.)

✓ What should you say and not say during your interrogation.

Part I With Thomas Glasgow | How To Advise Clients, Friends, and Colleagues on Conceal and Carry

May 18, 2016 19:55

Description:

Criminal law attorney Thomas Glasgow sits down with us and walks us through the important decision points that must be (or should be) considered before obtaining a conceal and carry permit.

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Thomas Glasgow

Thomas Glasgow is a former Cook County prosecutor. He has a wealth of experience trying cases on the criminal defense side as well. 

You, however,