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.”

Cop Games, Due Process and the CPD “Black Site.”

“Sorry to disrupt, but I’m here for Mr. Innocent.”

One of my favorite things to do at this job is to show up at police stations.  If a client is inside an interrogation room, manages to wade through the coercive Reed Technique garbage and get a call out to me, I’ll drop almost anything I’m doing and try to get there if I can.  It hardly every happens, though.

Cops play all sorts of games to prevent it- despite what the Constitution says.

If I can talk to the cop directly, they’ll do everything they can to interfere. My favorite is when I ask “You’ve arrested Bob Innocent, my client…” to which the response is always, “No, sir, Mr. Innocent has not been arrested“,  Because, as you know, even though a man is handcuffed and locked in a police interrogation room, he might be arrested to you or me, but that’s not “arrested” to the cops.

So, you have to say “detained”.  That’s the magic cop word that means “arrested” to everybody else. If you don’t use their magic words, they play dumb. Continue reading “Cop Games, Due Process and the CPD “Black Site.””

The Legalization of Marijuana Doesn’t Solve Financial Problems. So What.

For years I’ve been saying that legalizing marijuana so we can “tax the stuff” and put the money to good use was a really bad idea.  That’s not to say that marijuana should be prohibited. It shouldn’t.  That is to say, however, its legalization shouldn’t be championed by people claiming the extra tax revenue would solve the world’s problems. Continue reading “The Legalization of Marijuana Doesn’t Solve Financial Problems. So What.”

Three dumb things people say to the police… all the time.

So, you’re sitting in my office and you’re mad that you got a ticket or were arrested for DUI or are charged with murder. You’re going to fight this thing all the way. You’re mad.  They never read your your rights.  They never showed you the radar.  If they didn’t do that, you must be “not” guilty, right?

For whatever reason, there seem to be a large number of people who, between the time they’ve last talked to the cops and the time they walk into my door, have convinced themselves they’re not guilty.  That’s just fine.  If you want to take the best shot at winning at trial, though, there are some things you probably said to the police that you shouldn’t have.  Those things are going to make it really hard for a judge or jury to see just how not guilty you really are:

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When the police first pulled you over or started to talk to you: “Yes”.

Do you know how fast you were going? “Yes.”  Do you know why we’re at your house with this warrant looking for a dead body? “Yes.” Do you have any idea why the neighbor says you were swimming naked in his pool at night and creeping out the entire neighborhood? “Yes.”

When the police ask those initial questions, they obviously know something. They’re not going to tell you what it is, but they’re going to try to get you to talk about it. After all, you may “know things only the killer would know.”  If you answer “yes” to any of these initial questions, it’s going to start a dialogue- a dialogue that’s only going to get harder to stop.

Probably the only worse answer than “yes” would be to lie.  Like, telling an officer at a traffic stop that you were going 47 when his radar says you were going 89.  Lies are either going to frustrate the officer or (in a more serious case) make you look even more guilty when you’re busted.

A better thing might be to say, “I’d like to talk to a lawyer before I answer any of your questions.”  Nobody seems to ever believe me on that, though. It’s sort-of a free country, I suppose.  You go ahead and do what you want.

When they want to search: “Yes”

When it comes to car searches, this is almost always a follow-up to “do you have anything you shouldn’t in the car?”  Of course, if that’s what happened you must have skipped the section above and either lied (hoping he’s not smart enough to know all the drugs are “hidden” in the trunk of your Chevy Vega), or answered “yes”.

So, now he wants to take a look. He’s asking you, and you don’t want to “look guilty” so you’re going to let him search.

Look, I know it seems a bit extreme, but no police officer is ever searching my car, house, body or other property with my consent. I have nothing to hide- just like you (except for those apples you’re illegally smuggling into Canada), but my stuff is nobody’s business and I don’t care how they think that makes me look.  I’d be somewhat offended if they even asked.

Getting sucked into “not wanting to look guilty” is the best way to look absolutely guilty. Nothing says “this guy is probably guilty” like the weed the cop found in your pocket or the headless corpse in your crawl space.

If they ever ask to search, you can always tell them you’d like to talk to a lawyer about it first. Just saying.

When the police are interrogating you: “Yes”

You’re in some small room at the police station. The room is simple, without decor or anything but a small table and some chairs.  There’s one cop- maybe two.  They’ve read you your rights, and they’re asking you questions.  They want to know how long you had “beef” with the guy who was just found stuffed in the back of a burned-out AMC Gremlin down by the river.  “You’ve hated this guy since before that day at the Bieber concert, right?” They ask.
https://www.youtube.com/watch?v=5nq3FHm6DZ0

Wait a minute. You’re in custody.  They read you your rights. They just told you that you had a right to an attorney.  They told you that they’d get you one before any questioning.

Now you’e sitting there, without having talked to a lawyer, and you’re about to agree that you didn’t like some guy that they found dead?

Brilliant idea, Einstein.  Especially if you didn’t kill the guy (or if you’re going to tell your lawyer you didn’t, anyway).

Just another crazy thought, but if you’re planning to contest the charges and try to avoid spending the rest of your life in prison, it might make sense to talk to a lawyer first. Probably.

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There you have it. You’re in my office. You want to fight this to the end. You’re mad that your rights have been violated. They can’t prove this case… except, of course, for the fact that you admit you knew why they were looking at you, let them search wherever they wanted and confessed after they read you your rights.

Can’t wait for your trial.

Don’t Taze Me Cary, Illinois Bros.

Electrifying news from the Cary, Illinois police department! For the cost of only about ten thousand taxpayer dollars, seven of the officers are going to be armed with tazers. According to the Northwest Herald:

By JOSEPH BUSTOS – jbustos@shawmedia.com

CARY – Police officers in the village will soon be carrying Taser.
The village’s police department plans to equip officers with the electronic control weapons. Adding the additional level of use of force is set to cost the village about $10,750, according to Police Chief Patrick Finlon.
After training, the department will have seven units. The costs also include the battery packs, holsters and data packs, among other things.

This quote from the Cary police chief gave me the biggest chuckle, though:

The use of [electronic control weapons] has become an industry standard and with a properly developed policy and training in the area of tactics, court decisions and policy, the introduction of ECWs can reduce the possibility of injury to both law enforcement and offenders and thereby reduce exposure to the municipality,” Finlon wrote in a village memo.

That’s definitely true.  There’s a flip side to that, though.  Tasers can also be used improperly.  They can be used to harm people who otherwise wouldn’t be harmed with “traditional” policing.  They can be used by officers out of frustration, without a real reason- like this cop who tased a man as a result of a traffic stop (and subsequently cost his municipality another $40,000 plus whatever defending the lawyers cost in a law suit):

(the electrifying action comes just after the two minute mark)

I watch that and I wonder just what would have happened if that officer didn’t have a taser.

A few years back, over the course of a single month, I represented two men who had been tasered by the same department.  Both incidents stemmed from traffic tickets. In one, the man getting ticketed refused to hang up his phone and the officer got frustrated.  I seriously doubt either of them ever threatened harm to an officer. I also doubt either of them ever would have had force used against them if the officer didn’t have a taser.  Tasers seem to be the preferred method of dealing with annoying people that otherwise might not be subjected to force.

That’s not to say that tasers don’t have their uses- clearly they do.  It’s just that they seem to be over-used because they usually aren’t lethal.  Of course, sometimes they are.  And, when that happens, they cost the government tens of millions, not ten thousand dollars.

Hopefully this won’t be an issue in Cary.

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?

Two Bad Misconceptions About the Law

This is a fun job. It really is.  So fun, in fact that everybody wants to do it.

Maybe that’s a stretch. It seems that everybody wants to comment on it, though.  I’ve pointed this out before, but there aren’t a lot of other jobs where people without any real experience are so open to tell you what the laws should do, what your job should be (and why they could “never do your job”).  Nobody tells the accountant at the Thanksgiving table that they have to defend/attack/comment on something they heard Nancy Grace or Jon Stewart talking about on TV.  Nobody asks the plumber at the party how he could dare install plumbing for “those people.”

Not that I’m complaining. It goes with the turf.  It’s part of the job. Continue reading “Two Bad Misconceptions About the Law”

The War Against Humaneness.

Dixon, Illinois is an pretty historic place.  It’s where Illinois’ most famous resident, Abraham Lincoln, decided to join the Blackhawk War.  It was also the boyhood home to another man, Ronald Reagan, who went on to become president.

To criminal defense attorneys and the loved ones of their clients, it’s also home to other people: prisoners at the Dixon Correctional Center.

Two weeks ago I found myself driving by the Lincoln and Reagan historical markers towards the dilapidated, run-down, and generally monotone prison. The place is pretty depressing, but I had the privilege of meeting a client there.

And, I didn’t put “privilege” in quotes for a reason. I’m not being sarcastic (for once).  Every person with an opinion- one way or another- on mandatory minimums, how our justice system works, and what should happen in prison should have the opportunity to visit prisoners.  It’s not as though I would expect it would change your mind either way.  It adds legitimacy to your opinions, though.

I’ve been there many times before. As always, the procedure to go through security was different than the last time I was there.  When I finally got through, I took a seat at my assigned table and waited for my client. And waited. And waited. I waited in that large visiting room for an hour.  I’m still not sure what took so long, but that’s life in the prison.

Continue reading “The War Against Humaneness.”

Late to the party.

The process of going from being a “regular” person to being “accused” is an interesting one.  If you’re charged with a felony, it usually means you were charged with a criminal complaint and later either a judge (at a preliminary hearing) or grand jury (by an indictment) found there was probable cause to charge you.  People are typically charged with crimes as soon as the police and state’s attorney’s office think they have enough evidence against you- usually the same day or shortly thereafter.

Sometimes, though, the charges come months or even years later. That’s what just happened in Woodstock with the deaths of Gloria and Nick Romano:

Son charged with 2006 slaying of parents

Published: Thursday, Jan. 16, 2014 12:58 p.m. CST • Updated: Thursday, Jan. 16, 2014 11:12 p.m. CST
By CHELSEA McDOUGALL – cmcdougall@shawmedia.com
More than seven years after they were found shot to death in their McHenry County home, the son of Gloria and Nick Romano has been charged with killing them.
Michael W. Romano, 54, was arrested Tuesday in Las Vegas, charged with first-degree murder in his parents’ 2006 double homicide.

So, you ask, why did it take so long?  You know they’re not going to sit on a murder charge for no reason.  They’re going to charge this sort of thing as soon as they can.  Especially because he was a suspect the entire time:

Police long have suspected Michael Romano. Formerly of Algonquin, he left the area shortly after his parents’ death and was working as a cab driver in Las Vegas, sheriff’s police said.
As the 2006 investigation progressed, Michael Romano stopped cooperating with detectives and would only speak with them through an attorney, according to Northwest Herald reports from the time.
It’s unclear what new evidence, if any, connects Michael Romano to the killings. McHenry County State’s Attorney Criminal Division Chief Michael Combs would not comment on the investigation.

That last paragraph hits the nail on the head.  “It’s unclear what new evidence, if any…”  These media people have to say this sort of thing because they’re not supposed to speculate.  I’ll speculate, though.

In my experience there’s almost always new evidence with these late charges.  Typically, charges coming after a long delay occur because either an informant came forward, or there’s new lab/scientific evidence purportedly linking the accused to the crime.  Lab/scientific evidence can be delayed because new techniques or tests were developed to analyze existing evidence in a different way (like is happening with all of the exonerations in the pre-DNA cases).

Informants, though?  Why do they wait?  Why would that sort of information take so long to come out?

It’s not usually because some upstanding citizen has a change of heart six years later– your average “upstanding citizen” is going give the police any and all information he can on an unsolved crime as soon as he can.

It’s what you and the police may call an “informant”, many of us refer to as a jailhouse snitch.  Those guys don’t want to talk to anybody about anything. Then they get themselves in trouble and need a quick way out.  They start to talk.  It’s just like when I wrote about the Lance Armstrong doping fiasco.  People who don’t want to talk will often talk when given the right “incentive”. It can take time for that incentive to form (meaning, it takes time for them to get arrested on their own serious charges first).

Sometimes they give the authorities truthful information in an effort to help themselves. Other times they don’t have truthful information, but they tell whatever story they think might be helpful.

I don’t know anything about the Romano case other than what I’ve read in the paper.  I’d hazard a guess that there’s new information- probably from an informant.  We’ll know soon enough.