Ponderings on Possession, Part Two.

I’ve struggled with Windypundit’s possession post.  If you’re not keeping pace, last week he brought up an interesting scenario (or two) resulting in people innocently going about their business but somehow obtaining items it’s illegal to possess. I took a stab at giving what I thought would be decent advice based on the scenarios presented (and also tried to explain the reasoning).

It wasn’t particularly easy, but many things in the world of criminal defense aren’t.

The shame of Draughn’s legal problems isn’t really the absurdity of possession crimes, though. While the hypotheticals do a great job highlighting that absurdity, the root of their difficulty is in a  couple of much more pervasive aspects of the system. Continue reading “Ponderings on Possession, Part Two.”

Ponderings on Possession.

Mark Draughn’s “Windypundit” blog is one of my regular reads. He’s somehow found the magic ability to post both frequent and frequently interesting new thoughts.  Today he posted an interesting hypothetical regarding possession of contraband:

To make it more concrete, suppose I’m walking down the street, minding my own business, when a stranger confronts me, thrusts a duffle bag into my hands, and runs away. When I open a duffle bag, I find a tightly wrapped kilo of cocaine, a pile of child pornography, and a MAC-10 submachinegun. As I look up, I notice several police officers coming down the street, obviously searching for someone or something. They haven’t noticed me yet. What should I do next?

Well, then. What do you do?

From a strictly legal standpoint Continue reading “Ponderings on Possession.”

…But The Problem Isn’t Plea Bargaining.


Earlier this week somebody forwarded me the Economist article on eliminating plea bargaining.  Like most mainstream suggestions on how to “fix” the system I ignored it because… well, because I don’t care what the Economist has to say about criminal law.  I don’t think that’s unreasonable.
Continue reading “…But The Problem Isn’t Plea Bargaining.”

You Can’t Turn Over Police Reports You Haven’t Written.

Between pondering how the courthouse bathrooms were trashed within 10 minutes of the place opening, and hoping that the cooler temps mean we’ll see less than 80 people shot in the city this weekend, I managed to come across a great post on Simple Justice.  The post was Mr. Greefield’s ruminations on the pervasive practice of prosecutors disclosing evidence on the eve of trial.  By “eve of trial” I mean years after they were ordered to disclose it.

If you’re unfamiliar, this happens all the time. It happens with such frequency that it’s not even surprising… to the judges.  By-and-large, judges may act frustrated with the practice, but nothing ever really happens about it.  Greenfield’s post, titled “When the Judge Says ‘Meh'” sums it up better than I ever could:

[section_alt background_color=”]

This would be an excellent place to point out the irony that the prosecution puts a person on trial for violating the law, while it simultaneously violates the law, but that only plays to the naïve. Reality is that we, the players in the system, both know this and live with this all the time. We have for as long as I’ve practiced law.
The prosecution holds a special place in the system, a combination of low expectations of competence and efficacy, and facile excuses for its neglect and failures.  They are the systems saviors, and while any defendant or defense lawyer would be led out of the courtroom in cuffs if we did a fraction of what the prosecution does regularly, they get a free pass.

[/section_alt]

You can spend years getting ready for a trial, develop a great theory, work towards gathering and presenting evidence and at the last second a prosecutor turns over something new (to you, of course, not them) that you’re neither expecting nor ready for.

To quote Mr. Greenfield, the judge says “Meh.” It never seems to matter.

In the past year, I’ve twice had cases set for trial and, within days of the trial date the prosecutor turned over police reports.  Obviously that’s not new.

What is new is that in both of those cases the police reports had not even been written until a year after the offense.  In one of the cases, the prosecutor talked to the cop and told him to write a report. Of course, the report was directed at defeating the motion to suppress arrest that was headed for an evidentiary hearing.  Nothing shady about that, right?

In the other case, the prosecutor didn’t even know the cops had info they “hadn’t gotten around” to writing up in a report.

So, you’re about to go to trial, the prosecutor was ordered to get you any and all evidence he intends to use at trial over a year ago, all the decisions you and your client have made to this point are based on the evidence that you had been given, and now you are getting police reports that were written only because your client is contesting the charges against him.  What happens now?

You’re outraged. You’re shocked. You’re asking for the “new” evidence to get barred. You’re asking for a continuance.

The judge, though? What’s the judge say? Mr. Greenfield nailed it.

Just how the system is supposed to work. If it isn’t, then why does it?

Why Do Cops Let People Drive Drunk?

You know how drunk drivers are a danger?  They cause accidents?  You know how they kill people?  You know how we can’t tolerate having impaired drivers on the road?  You know how we are so gung-ho on punishing DUI that we won’t even tolerate a drunk driver pulling off the road to “sleep it off”?

Maybe none of that is true. Maybe it’s ok to let a drunk drive for a little bit. Or maybe keeping drunks off the road isn’t really as important as letting drunks on the road so we can then take them off the road and look like we’re doing some sort of good work.  I don’t know.

I do know that last week I was watching a hearing on a DUI case up in good, old Woodstock, Illinois, McHenry County, U.S.A.  From what I gathered (I missed a part), a cop was outside a bar late one night watching patrons as they leave. Nothing illegal about that- it seems that that’s the sort of place drunk drivers might be coming from.  Good policing there.

Our hero watched a man leave the bar and cross the street. Apparently the man stumbled or fell… his movement was so obviously impaired by what was likely alcohol that the officer moved his car around to get a better view of where the guy was going.  From the second spot, the officer watched the man get in the car and start it all up.

Then the officer did exactly what you’d expect him to do… Nothing.  Once the man started the car and drove away, the officer followed.  Of course, the man who couldn’t walk couldn’t drive either and, after watching him swerve all over the road the officer pulled him over and ended up arresting him for DUI.

Good police work you say?  I don’t know.

Can’t a drunk driver kill somebody in a blink of an eye? Isn’t no distance the acceptable distance for an impaired driver to drive?  Or, is there some magic rule that a drunk driver can’t plow into an innocent family as long as a cop is watching?  Shouldn’t DUI prevention actually mean prevention regardless of who is watching?  Safety is safety, right?

I know what you’re saying- this is America and a cop can’t tell the dude he’s not allowed to drive.  I agree with that. But, this is also America and a cop can walk up to a drunk man, tell him that if he drives he’s going to get pulled over before he gets out of the parking lot, and strongly suggest the man call a friend or a cab.  If cops can talk people into confessing to murder (even murders they never commit) can’t they talk people out of driving?  Maybe my way is just silly.

My way doesn’t risk a drunk man on the street possibly killing somebody, though.  My way doesn’t leave open the possibility of a high-speed pursuit with a drunk man at the wheel. My way also doesn’t net anybody an arrest or another smiley face on the record from AAIM.

My way keeps the streets safer, though.  Isn’t that really what’s most important?

The Unfair Fight.

I’m not willing to let this press release/social media campaign issue die yet.  Like I wrote about a while back, an inordinate amount of your local crime news is cut-and-pasted directly from press releases issued by police and prosecutor’s office.  Don’t believe me?  See for yourself.  I’m not the only one who’s written about this.

Tonight, while I’m minding my own business and getting gnawed on by the dog, I took a look at the Kane County Chronicle to see if there was anything interesting I didn’t catch while at the courthouse.  It doesn’t appear that there was.  On the other hand, I did find this interesting article which got my little brain churning:

Aurora man convicted in North Aurora home invasion
Published: Thursday, Feb. 6, 2014 5:30 a.m. CST
 By KANE COUNTY CHRONICLE – editorial@kcchronicle.com
ST. CHARLES TOWNSHIP – An Aurora man will be sentenced this spring for his role in a North Aurora home invasion that left a couple terrorized and a dog dead, according to a news release from the Kane County State’s Attorney’s Office…
Then it goes on, of course, to essentially re-hash the Kane County State’s Attorney’s press release.  The highlight is the following quote from the Kane County State’s Attorney himself:
“Mr. Mullen took advantage of his friends for his own personal gain by threatening and inflicting violence them,” McMahon said.
Before you get on my case for clearly omitting either the word “upon” or “on” before “them”, let me assure you that I left nothing out.  Read the article yourself, that’s exactly what it says:
newspaper
Of course, it only says that because that’s also exactly what the press release says:
mediarelesae

We’re not here to talk about lazy reporting and sloppy editing today though– certainly I’ve missed my fair share of mistakes in posts here.  So, I won’t judge.  On the other hand, we are here to talk about the substance of these reports.

Therein lies the unfair fight.  Every time I read through my twitter account and see police department and State’s Attorney’s offices patting themselves on the back and bragging about their heroic victories, I’m caused to wonder (and sometimes tweet) if they’ll ever let the public know the other side of the story- about the cases they’ve charged, prosecuted and lost.

Of course they won’t.  You assume I will, though.

Not a chance.

Being a criminal defense attorney is a lot like playing in the defensive backfield in the NFL- you  may have been burned for a touchdown or you may have intercepted a pass on the last play. It doesn’t matter, though.  You need to get the last play out of your mind because the next play is coming up… and you might just get burned for a touchdown (or intercept a pass).

Sadly, most of the cases in criminal court get resolved through deals.  Nothing can mess up an attorney’s ability to work a good deal for their client than too much ego- on either side of the case.  If I won a trial today and issued a press release naming names and pointing fingers, it might be fine today.  Tomorrow, though?  Tomorrow I’m right back at it (probably with the same prosecutor) but for a different client.  What I don’t want is this client to get a bad (or no) offer because I embarrassed the prosecutor on the last case.

That’s not to say that defense attorneys don’t beat their own drums on occasion.  It is to say, however, that there’s a practical reason it’s a lot less prevalent than what we’re seeing with police and prosecutors right now.

That’s just another reason you’ve got to be skeptical whenever you’re reading local crime news.  Those news articles are often a battle for public sentiment and support.  It’s largely a one-sided battle. It’s an unfair fight.

Bomb Threats at the Kane County Courthouses: Probably a Bad Idea

Earlier this week somebody, apparently, phoned in a couple of bomb threats to the Kane County Clerk’s office.  As a result, they closed the Kane County Judicial Center in St. Charles, the Kane County Branch Court that’s a mile away and the Elgin Branch Court. I know I’m going out on a limb here, but this bomb threat was probably a bad idea. Maybe even the worst idea of the week.

The Sheriff in Kane County is like many of your local lawmen across the country- well trained in responding and dealing to these sorts of threats. So, he kicked all the lawyers out of the judicial center, closed it for a couple hours, and then re-opened the courthouses and got back to business.  It was over quickly.

For everybody except the people making the threats, anyway.  See, these bomb threats are felonies- serious felonies.  Felonies are generally bad things to try to squeeze into your busy week.  Some are worse than others, though.  This would fall into that category.

I know I didn’t have to tell you that, though.  You remember 9/11, and you know that anything that has anything to do with mentioning bombs isn’t about bombs any more- it’s about terrorTerror equals extra-bad punishment.

That’s not really the worst part of this bad idea, though.  The worst part is that the alleged bomb-threat maker called the threats in to the clerk’s office.  According to the Kane County Chronicle:

Two threatening phone calls Wednesday morning prompted the evacuation of the Kane County Judicial Center in St. Charles Township, the Kane County Branch Court in St. Charles and the Elgin Branch Court in Elgin, Gengler said. He noted other court buildings were checked as well.

Sheriff Pat Perez said the calls came in about 9:40 a.m. A voicemail message was left at the Kane County Circuit Clerk’s Office, which shares a building with the Kane County Branch Court, he said.

The message was “a lot of people in Kane County are going to die today,” Perez said.

QuadComm – a dispatcher for Dundee, Carpentersville and Algonquin – relayed a second call to KaneComm, Perez said. That caller said four bombs were planted at the courthouse, Perez said, noting officials took that to mean the Kane County Judicial Center.

Authorities have identified a person of interest for both calls, Perez said, noting they are different people.

I’m no Magnum P.I. but I know exactly how the authorities found these two “persons of interest.”  They looked around for the a rock large enough for two people to hide under.  That’s the only place anybody could possibly be to have no idea what’s been going on with law enforcement and phones.  And by that, of course, I’m referring things like the government’s ability to track your cell phone even when it’s off, and the fact that AT&T is fine turning over all of your phone data- even if it was from over twenty years ago.  Who thinks they can phone in bomb threats anywhere and not get nabbed quickly, any more?  Only guys under rocks.

If you’ve got nothing to hide you’ve got nothing to worry about, right?  I don’t know about that, but I know that if you’re phoning in bomb threats to the St. Charles courthouse- or anywhere else- you do have something to hide.

I guess if I could give you people one piece of advice from all of this it’s that you shouldn’t ever make bomb threats– doubly so if you’re going to do it over the phone. It never ends well.

That guy deserved that sentence.

Earlier this week I accused you of being angry.  Your anger stems from criminals “getting off light” and prosecutors not taking cases to trial and demanding the ultimate punishment.  I thought your anger and outrage was misplaced.

I still do.

And, here’s why: Horrible Plea Bargains Are Your Best Friend. A gift, if you will.

There you go.

This right here explains why you people are so angry.

In a few days the good people over at Excessivebail are going to post a little thing I wrote about plea bargains (Edit: It’s now up here).  It’s not really so much about plea bargains as it is about how the public and victims (you people) react when somebody you “know” is guilty gets “too good” of a deal.  It was inspired by Billy Curl recently getting a “good” deal for murdering that NIU student.

I won’t spoil it for you. Rather, I’ll allow it to underwhelm and disappoint you when it’s posted.

In light of that, though, I came across something I had to mention.  This case in the Northwest Herald is one you have to keep your eye on: “Former Private School Principal Arrested in Johnsburg.”  Why do you have to keep your eye on it?  It’s exactly the kind of case that the public (you people) is going to react to when it’s resolved in the Woodstock Courthouse.

To save you actually having to click over, here’s the main gist of the article:

JOHNSBURG – A former private school principal in Johnsburg has been arrested after she sent “offensive” letters to parents of students, according to the Johnsburg Police Department.

Pamela Dvonch, 63, was charged with misdemeanor disorderly conduct on Sunday in connection with at least 16 letters recently sent to parents of students at St. John the Baptist Catholic School.

The letters — a sheet of paper in an envelope with a few words on it — forced authorities to post officers at the school April 2 as a precautionary measure.

The cards were sent to parents on the school’s parent advisory board and fundraising committee, as well as the pastor at the church and a separate parishioner, Johnsburg police Chief Keith Von Allmen said. The cards were homemade.

An investigation later linked Dvonch to the letters, and she turned herself into police on Sunday. She previously worked at the school for more than 20 years.

“Inside the cards, there were offensive statements directed at the parent,” Von Allmen previously told the Northwest Herald. “I want to make it clear that it was not a threatening comment.”

Dvonch was charged with misdemeanor disorderly conduct due to the disruption the letters caused at the school, Von Allmen said Monday.

“Disorderly conduct is a breach of the peace,” he said. “The disruption that occurred at the school was caused by these letters.”

Folks, this is a bad case.  How do I know?  First clue is the description of what she wrote.  Look how vague it is.  Were the letters threatening? No.  They were offensive? Yeah?  How so?  Would you have been offended by those words?  Would I have? Offensive to whom?

Go ahead and Tell me what the words were. I’m a big boy. I can handle it.  What were they?

Oh.  You‘re not going to do that?

And when I say “you” I mean the cops who charged the case (and who are the source of the report).  There’s a reason they’re not telling us.  That reason probably isn’t because it makes it look like this is an awesome case for them.

How else do you know it’s a bad case?  Well, those same cops who charged the case and gave this information to the newspaper don’t know what they’re talking about.  Disorderly conduct isn’t a breach of the peace.  A breach of the peace can be disorderly conduct.  It can be only if several other elements of the offense were met (like the defendant’s actions must be unreasonable).

Oh and, by the way, even if all those other elements are met and there was a breach of the peace, it’s still not disorderly conduct if it’s based on words and those words are what is called “protected speech.”  Were they?  Maybe that’s why they aren’t telling us what the words were.

Did the cop know all this?  Maybe he just didn’t have time to go into that much detail with the reporter. Or, maybe he doesn’t really know all those other pesky details. I guess we’ll find out.

Either way, this article is one of those things that looks scary.  I’m sure members of the public are alarmed.  Keep an eye on the reaction when this case gets resolved.  If you’re angry when it gets resolved, don’t be mad at the prosecutor.  Don’t be mad at the defense attorney. Be mad at the guys who charged the case and left out all of the minor details when they told you about it.

Representing yourself in traffic court? Tips for success from a pimp.

It seems that these pages get a lot of hits for people looking for tips on representing themselves in traffic court.  They have a ticket, don’t want to plead guilty, and surely don’t want to pay a guy like me to help them.  Who can blame them?  You headed to Kane County Branch court for that speeding ticket?  Bad registration at the McHenry County Courthouse?  You probably don’t need me… or any lawyer.

I’ve hinted at this before, but if your traffic record is good, the ticket you received is for a minor violation, and you are reasonably decent at explaining yourself, hiring an attorney for traffic court might just be one of the biggest wastes of money out there.   The law isn’t overly complicated.  And, quite frankly, the folks at the Kane County traffic court are generally decent people to deal with. If your record is bad or it’s not a minor violation, on the other hand…  I do offer free consultations.

Anyhow, I saw something in court today that had me reconsidering the fact that I’ve published that advice on a public web page.  I was waiting in line to start a trial in traffic court.  Before our case, the judge called the case of a lady who wanted a trial and was representing herself pro se.  Prosecutors hate having to deal with pro se trials.  I love watching them.  It’s fun seeing normal people push back on the system because, honestly, it doesn’t happen enough.

Anyhow, in a move you don’t see all the time in traffic court, the Judge asked the lady if she’d like to make an opening statement. He, very nicely, explained to her that she didn’t have to say anything but could use this opportunity to make a statement telling him what she thought the evidence would show and give him an idea of what to look out for.  My ears perked up and I started paying better attention.

This was her chance to get her version out before the cop even got to speak.  This was her chance to start persuading the judge before the prosecutor even called a witness.  This was her chance to show the judge that she was just a normal, likeable person taking on a trained government lawyer and paid, professional witness.  This was her time to explain to the judge why he was going to see David stand up and fight back against Goliath.

With that, this is what she said:

You are going to find me guilty because it’s my word against his.

What? Serious?  Damn!  I was almost sorry I started to pay attention.  What’s that saying about “you never get a second chance to make a first impression?”  Her opening statement told the judge that she’s already not anticipating victory.  Guess what happened in that one?  Yeah. She lost.  Nothing like setting the bar low from the outset.

You really don’t give yourself much of a chance when the first thing out of your mouth both tells the judge you’re not expecting to win and tells the judge he’s not going to believe you.   Oddly, many judges don’t have the automatic presumption that police are more believable than regular people.  Oddly, in traffic court people often get a much better shake than in, say, felony court.

So, I don’t take back what I said about most people not needing a lawyer a traffic court.  Instead, I add to it:

I once saw a television show that documented a Philosopher who went by the name of “Pimp Snooky.”  A small sliver of Pimp Snooky’s  philosophy was something you should really keep in mind when you’re in front of the judge.  It’s very simple- “Let your next move be your best move.”  That is what the lady today should have let shape the first words from her mouth.  She should have opened with the best thing she had to say.

While Pimp Snooky may be a Philosopher, he’s not a prophet. Sadly, the rest of Pimp Snooky’s philosophy seems to be really, really, really bad advice.  I can’t advocate following a single other thing the man has said.  That little bit, though, is gold.

Any time.  And by that, I mean ANY time a judge gives you a chance to speak freely about your case you need to put your best foot forward.  If you’re representing yourself in traffic court, don’t lead by admitting defeat.  Make Philsopher Snooky proud.  Let your next move be your best move.

I would think this should go without saying. I guess not.