Month: November 2011

Jerry Sandusky’s lawer is not as dumb as you think.

Have you ever tried to fly?  I mean, without an airplane, hang glider, parachute, or any of that stuff.  Try it.  Go ahead.  Try it.

Sometimes this job is like trying to fly.  You have a goal and no way to get there.  It’s going to take a miracle.  Maybe a miracle delivered by a flying pig.

This happens in criminal cases all the time.  Lawyers are stuck with cases that have no real upside, or have a client who will testify (it is the client’s decision to make and not the lawyer’s) and his testimony is not supported by any of the facts.  When faced with this extremely stressful situation lawyers do one of two things: fight or flee.  Lots of lawyers flee.  Nobody wants to be on a sinking ship.

“Flee” can look many different ways.  Some lawyers will come up with reasons to withdraw from the case.  Others will do any and everything they can to force a client to enter a plea he doesn’t want to enter.  Still others will put on a “token” defense.  Unfortunately, the German invasion of France in WWII was not the only time somebody “pretended” to fight.

“Flee” is what the bloodthirsty public wants us to do.  Fleeing is more honest, right?  It’s more morally correct to make sure somebody you “know” is guilty gets convicted, right?

Wrong.  It’s completely immoral to flee.  It’s also unconstitutional.

I’ll say that again: It’s Immoral.

Beside the fact that we never really know the truth, our job is not to determine right or wrong.  Our job is to make sure that a Judge or Jury has complete information so that they can determine right or wrong.   And, we are not “just doing our job.”  The job of a defense attorney is important- so much so that it is in the constitution.  We are a “check” on the government.  Police busted into your house for no reason whatsoever lately?  Thank a defense attorney.

You may not like my spin on this.  I’m fine with that idea. Change the system.  I will work with whatever rules you pass.

Until then, don’t blame the attorneys.  When defense attorneys start short cutting the process to ensure poor results for their clients, the entire system fails.  Those defense attorneys who “flee” are depriving the jury of the job they have sworn under oath to do.

Opposite of the lawyers who flee in these situations are the lawyers who fight.  I like to call these the “lawyer’s lawyers”.  Lawyer’s lawyers know that sometimes you just catch a whooping, but that it’s better to do your job and catch an occasional beating than cherry-pick.  It cracks me up when lawyers brag about winning 15 or 20 trials in-a-row.  Makes me skeptical, actually.  Not every carry Walter Payton ever had went for positive yardage, but he attacked each and every time he got the pigskin.  Remember Raymont Harris?  I didn’t think so.  I believe he’s the Bears record holder for either most consecutive carries with positivie yards, or greatest percent of carries without a loss of yardage.  Do you want Walter Payton or Raymont Harris when it’s 4th and inches?

Sandusky’s lawyer might just be a lawyer’s lawyer.  What would you do if your only real inside information on this case was Sandusky’s story?  Without police reports, FULL grand jury transcripts (you don’t have them, either) and only his story to go on, it seems that your defense may be that Sandusky is creepy. Really creepy.  In fact, he’s so creepy that he wigs people out.  His interview spooked the hell out of me, and I do this stuff every day.  People may very well be so creeped out that they embellish when talking about him.  I could see it.  Maybe they do.

You do have to wonder, though, if so many people had seen, heard, and heard about so much, how come they never did anything?  What would you do?  What would any rational person do?  What is everybody saying they would do?  Call the police.  9-1-1.

The fact that nothing, really, was ever done might dovetail into the possibility that people embellished a little about creepy Sandusky.  Maybe stories got worse as time went on.  I have no idea.  Neither do you.

So, why let him speak to Costas?   He is going to have to testify.  Assuming his testimony is similar to what he told Costas (which, at this point, it’s going to have to be), his creepy story will be much less shocking to the jury if they have already heard it.  He’s “drawing the sting.”  The “Oh, my” moment will have long since passed.  It won’t be as creepy.

Before you get your guts in an uproar and question I can say Sandusky is innocent when you know he is guilty, look how many times I used “might” or “may”.  I’m not commenting on Sandusky’s guilt-or-innocence.  I’m trying to break down why his lawyer may have had a good basis to have Sandusky do the interview.  I can tell you right now that I would not have made the same choice, but I don’t know what is going on behindthe scenes.  More importantly, I know that there is more than one way to skin a cat.  I don’t know. Neither do you.

Everybody who knows nothing about anything will tell you that Sandusky’s lawyer is a total idiot.  Seems they all know this without reference to mens rea, acteus reus, burdens, the constitution, elements of the offense or anything that actually makes a difference in the courtroom.  Sandusky’s lawyer may just be a buffoon.  He also might be a lawyer’s lawyer trying to fly.  Maybe he’s an idiot.  Maybe he’s not as dumb as you think.

The Kelli O’Laughlin stabbing: What you should do about it.

The blood-thirsty masses will make it so. It is easier to appease the masses.

Anybody who isn’t mortified by the details of the Kelli O’Laughlin stabbing isn’t human. It’s that simple. For those who may not know, the details released are that the high school freshman was murdered last week. She, reportedly, walked in on a burglar in her suburban Chicago home. He stabbed her to death and then fled.

The case has been on the forefront of Chicago media consciousness for the last week. The public frenzy reached its peak when prosecutors charged John Wilson with the girl’s murder. In doing so, more details have also bubbled to the surface. We are told that Wilson, after stabbing the girl to death, took her cell phone and sent “taunting” texts to the girl’s mother. Over the next couple days, he traveled with the girl’s phone. The FBI was able to nab Wilson by tracking the cell phone. There was some sort of DNA taken from a hat, and a subsequent eye-witness identification (identifying Wilson as being a few miles away after the crime), too.

I don’t doubt any of it. At this point, though, I dispute it all. You should too.

Why?

I don’t know what happened. You don’t know either. You think you know. You don’t know. You and Nancy Grace may “know.” But, neither of you really know. One of the first things I learned about defending people is that you don’t ever really “know” as much as the people who know nothing. It’s hard to explain. It seems that people on the “outside” of the case- the ones who get the least amount of inside information- are the ones who form the strongest opinions.

Am I saying that Wilson is innocent? Not at all. I’m saying you should wait. Calm down. Stop paying attention to the case. Let the system do its thing. Stop judging. It will be better for that poor girl and her grieving family in the long run.

Media frenzies only put pressure on prosecutors. They put pressure on elected State’s Attorneys to appease the masses. The same thing that makes democracy great can really skew the justice system. You think that added pressure to “do the right thing” is good? You think you want to pressure prosecutors to do what you “know” should be done? Pressure can cause really bad decision-making.

How did pressuring the authorities work out in the Rolando Cruz case? Remember that one? In 1983 a young girl was kidnapped and murdered after a burglar kicked in the door at her suburban Chicago home. She was home from school that day. Her body was later found just off a bike path not far from her home. Similar facts to O’Laughlin’s.

The cops arrested Cruz (and Alejandro Hernandez), and we were happy. We were even more happy when he was sentenced to fry. After all, we knew he was guilty. He confessed. Plus, he knew things that only the killer would know. So we were told.

The appellate court sent it back on some silly “technicality”. We convicted him again, and sentenced him to fry once more. He needed to fry after what he did to that young girl. He needed a good taste of justice… Illinois style.

And, he appealed. Why did he do that? Why did he waste all of our money on appeals? Just fry him, already. We knew he was guilty. Even so, Cruz was granted a third trial.

That third time was, apparently, a charm. After nearly 10 years on death row, Cruz was finally freed. The case was dismissed after (among other things) one the the police officers admit to giving false testimony in the previous trial.  At least we could put that behind us and stop wasting money, right?

Wrong.  There was still a killer “out there.”  Eventually the right man was charged, pleaded guilty and, in 2009, sentenced to death (a sentence which Illinois has since abolished in large part because of the plight of Rolando Cruz). When the dust had finally settled, a quarter of a century of Illinois justice looked something like this:

  • Trials: 7 resulting in 0 convictions (Cruz-3, Hernandez-3, Cops and prosecutors-1)
  • Civil suits: 1 (settled for 3.5 million)
  • Sentencing Hearings: 5 (Cruz-2, Hernandez-2, Dugan-1)

The real kick-in-the-pants was that the people behind the scenes had a pretty good idea that Cruz wasn’t really involved. Some of them went as far as saying they knew he wasn’t involved. They also had a pretty good idea of this before Cruz was even charged. They knew it at each trial, and at each sentencing. The guy who eventually admit to killing the girl made some incriminating statements very early in the case. Plus, there was physical evidence linking him to the crime. Then, why did prosecutors persist on putting Cruz to death?

Public outcry. It was huge. And, when I say “public” outcry, I really mean pressure from you people. The same people who are consumed right now with Wilson. For the politically elected official, fighting the tide of public opinion is like trying to dig to China: in theory you might get there eventually, but you will be long gone before eventually ever arrives. The blood-thirsty masses will make it so. It is easier to appease the masses.

How many TENS OF MILLIONS of dollars would have been saved in our financially wrecked state if the prosecutors were free to initially make the correct decision in the Cruz case? How would that have played out if the police didn’t feel any pressure to “solve” the murder. Should we ask Gary Gauger?

The decisions of law enforcement and prosecutors are skewed by overwhelming public opinion all the time. Would the Atlanta Olympic games have continued if the bomber wasn’t quickly apprehended? Good thing Richard Jewell was arrested quickly! It’s easier for politicians to apologize to a pathetic scapegoat than to oppose the opinionated mob. Especially if the apology won’t come until after the next election. Or, never at all.

I would like to know how many people out there signed electronic petitions for Troy Davis, cheered the exoneration of the Dixmoor 5, and are ready to fry Wilson? If you did, you just don’t get it. When Troy Davis, Rolando Cruz, and the Dixmoor 5 were initially charged, you hated them, too. Being objective in the heat-of-the-moment is the hardest time to do it, yet also the time it is absolutely most essential.

No doubt, if Wilson is convicted some spiteful person will email me with a nasty “I told you so” message. I don’t care. This isn’t a contest. It’s not me saying he’s innocent versus you saying he’s guilty. The courts aren’t there to decide who among us “won.” There are absolutely no winners in this situation. Besides, If you think this is about guilt or innocence you are missing the point.

The point is that the intense attention paid to criminal cases can often prevent the system from arriving at a just verdict. As I have explained in the past, the government does bring a lot of that on themselves. You can stop it, though. Do you care that much? Do the people who signed the Troy Davis petitions still care?

Again, I’m not saying Wilson is innocent. If you think that, you have been selectively reading. What I am saying is that we need to calm down and wait. You don’t know what happened. You only know what the police want you to know… just like the initial stages of every other big criminal case. The best thing you can do for the memory of this girl is ensure her family does not have to spend the next two decades reliving this horror over and over and over again in the courtroom- like the family of the victim in Rolando Cruz’s case did. Back off and let the police and prosecutors make correct decisions the first time- like them or not.

Can you do that for the criminal justice system? Can you do that for Kelli O’Laughlin’s family?

Dealing with the police (video): How did this guy do?

So, you decide.  Was it worth “talking” in an effort to “not look guilty?”

One of my favorite things to do is break down the abstract rules of “the law” into practical, useful information.  For instance, I’ve explained two simple things to consider if you don’t want to be arrested.  I even wrote a little bit on my three favorite things to hear out of people when they are dealing with the police.  If you haven’t read that yet, you might want to check it out.  Otherwise the rest of this post will make (even) less sense.

Earlier today it occurred to me that my ideas on how to act around the police might be difficult to envision.  It’s one thing to hear how my soul warms when reading a “suspect” tell a police officer that they’re not going to speak without first talking to a lawyer.  It’s another to see how that interaction actually unfolds in real life.  After all, no two situations are the same.  This is precisely why nothing on this web page can be considered legal advice as to how you should act in your particular circumstance.  If you really need legal advice, feel free to call.  If you anonymously read this stuff, decide to play amateur lawyer, and put it into action without talking to an attorney first, you are playing a dangerous game.  Just call a lawyer.

Anyhow, a quick review of my three favorite things to hear:

  1. “Am I free to leave?”
  2. “I want to speak with an attorney before I talk to you.”
  3. “No”

Now, suppose you find yourself in an alley one day under police suspicion.  Two police officers are all in your business.  What do you do?  When do you say what?  Assume that you have already been arrested, so asking if you are free to leave isn’t going to get you anywhere- scrap that off the list.  Let’s also pretend you are wearing a green shirt, and your name is Mr. Turner.  Shall we?

Keep in mind, many people say they don’t want to say any of “My Three Favorite Things” because it makes them look guilty.  Did you watch the plight of Mr. Turner?  If you have been able to get over the shock of seeing people wearing short sleeves at 5:00 a.m. in December, think about what just happened in that video.  Would Mr. Turner look more or less guilty if he had done the following:

  • Said “I would like to speak with an attorney” (at about :19) instead of saying (paraphrased to delete expletive) “I understand I was driving under the influence, but I wasn’t driving… I WASN’T driving.”
  • Said “no” when asked to do the balance test (at about :55) instead of rambling, ranting and eventually trying to do it.

That’s only for the first minute and a half of video.

Now put yourself in the shoes of a juror.  Assume that all you have to go on is that video.  Is he guilty of DUI?  Would he look more or less so if he had asked to talk to a lawyer?  I want to know. Seriously.  Send me an email, or let me know in the comments.

From a defense attorney perspective, this guy doesn’t have a bad case.  There is no video of him driving or actually being in the car.  He complicates it entirely with his attitude and most the stuff he says, though (ie. initially saying he knows he was driving drunk).  If he had said nothing, it’s a Not Guilty.  In fact, it’s probably not even going to trial.

With what he said, though, it gets a bit more difficult.  Illinois law doesn’t actually require you to drive in order to be found guilty of Driving Under the Influence of alcohol- silly as that may be.  Based on what his own statements were, he may have been in actual physical control.  Even though I still like Mr. Turner’s chances (and that is based just on the video alone… who knows what other “real life” evidence was presented for either side), his attitude may scare jurors.

So, you decide.  Was it worth “talking” in an effort to “not look guilty?”