New Illinois laws for 2012. We are sure to perish without them.

All the way back in last week of December, 2011, I took a moment to jot down my wishes for 2012.  I’m sure you read it. Or ignored it.  One of the two.

Right on cue, out come articles about the 200 new laws which go in effect on January 1 of 2012.  200 hundred of them!  Before you google it up (or look at the link I’m about to post), make a mental list of all the laws we NEED to enact.  All of the laws you just can’t live without.  All of the laws necessary to keep this great state going.  Maybe you should even take a moment to reflect upon how much better your life was because of the new laws enacted for 2011:

Wasn’t 2011 fantastic?  Done thinking about what must-have laws we need for 2012?  Now take a look.  Did your laws make the list?

Reading that article, there is no doubt that many of those laws sound like really good ideas.  Not every good idea needs to be a law, though.  Especially the ones that are going to be nearly impossible to enforce.  Should people be aiming laser pointers in airplane cockpits? No.  Should there be a law against it?  Before you tell me that there should, tell me how people are going to get caught.  Some pilot, flying hundreds (if not more) of feet over the planet, sees the tell-tale dot of a laser pointer and does what, exactly?  Instead of outlawing laser pointers, maybe we should outlaw flying.  It would be much easier to catch the law-breakers in that scenario.  Safer, too.  I’m guessing that less people die in laser pointers each year than in airplanes.

Maybe simply having the law will eliminate the problem?  Just like prohibiting murder has stopped killings.  Whatever.   When pointing lasers is outlawed, then only outlaws will point lasers.  If you can get past the feel-good nature of the descriptions of those laws, they’re not changing much of anything.

Despite these laws, I don’t count 2012 as a failure… yet.  Most of these laws have been on the books for some time, and we are just coming up on their enactment date.  When I babbled about my three wishes for 2012, I was hoping that our lawmakers don’t dedicate as much time to passing unnecessary laws in 2012 as they did in 2011. Or 2010. Or 2009…

In less grumpy news, I’m headed out of town until after the new year.  My feeble mind can’t deal with all of the pseudo-celebrities and their New Year “celebrations” (Kim Kardashian New Years Party, I’m looking at you).  I’ll be hiding where T.V., the internet, radio and all those new laws will have a hard time getting me.  If you try to find/call/email me, good luck.  I’ll be in the back country along Lake Superior.  If you happen to find yourself in an “emergency” situation, though, you might consider some helpful tips to keep you out of trouble until I return.

2012 new laws don't matter here
Porcupine Mountains Wilderness State Park, Ontonagon, Michigan

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?

There are no winners

Well, that was weird.  As of 11:00 a.m. today, the building administrator had no interest in taking down the white shirts.  As you already know, I went ahead with my plan to put on a display of orange shirts.

At, maybe, 2:00 today I received word that the t-shirt exhibit was coming down.  Out of the blue.  The County had a change of heart because the “handful” of cases that could go to trial next week.  That is about the lamest excuse I’ve ever heard- there were more than a handful that could have gone to trial over the last 3 weeks.  I won’t really comment much more on that though. I think the County has finally decided to do the right thing, and I am thankful for that.  Better late than before I get to put up Orange Shirts, right?  I’ve also decided to withdraw my request for a permit to hang the Orange Shirt Project.

On that note, somebody asked me if I this is a win.  I don’t see it like that.  It wasn’t “us v. them” or any such competition.  They wanted to put up the shirts, and were forced to take them down.  I got them taken down, but only after they were up for three weeks.

It’s a messed up situation that I’m hoping is never repeated.  Not at the courthouse, anyway.  If it is, though, I’ve already got some ideas in mind

Maybe, now that this is behind us, we can get back to the fun stuff?

Dirty Laundy

At lunch on Thursday, I penned a little letter.  I did something my girlfriend says I need to do more- I talked about my feelings

Sometimes I can’t help myself.  Sometimes I can’t take it anymore. This is one of those.

October is, apparently, domestic violence awareness month. Or something like that.  Every year the Woodstock courthouse celebrates this with a display of shirts.  Not any shirts, though.  White shirts that are “decorated” for domestic violence awareness month.  And, by “decorated” I mean that very personal, powerful, direct statements are written on them.  Some in Spanish.  Some with illustrations.

They say things like, “violence is not just physical.”  They address “you.”  Many of them tell powerful stories.  The display certainly does meet its goal of giving a “voice” to victims of domestic abuse.

And all of them are suspended from clotheslines spanning 3 stories of open stairway.  The same stairways that jurors walk up.  The same stairways that the criminally accused walk up.  The same stairways that I walk up.

I have had enough.

It’s not fair.

It is not fair that purportedly neutral jurors should be subjected to a display that is aimed at essentially telling “us” that “we” do not understand how serious a problem domestic violence is.  “We” don’t get how it is underreported.  “We” don’t get how “abusers” get off easily.

I don’t think it’s fair.  Not sure what to do, I contemplated my options.  Should I subpoena the names of every person who made a shirt?  I mean, I think the confrontation clause would give me a right to ensure none of them are witnesses against my client.  Witnesses should not be able to “talk” to jurors (even indirectly) without my cross examining them, right?

That seemed a little harsh. I mean, getting these shirts taken down should be easy, right?  So, I set out to do things the “easy” way.  At lunch on Thursday, I penned a little letter.  I did something my girlfriend says I need to do more- I talked about my feelings.( click link for copy of letter).  I told them how I felt about the shirts. It was direct. Maybe a little too direct for some people’s taste.  I asked around the courthouse and was told that I should direct it to the Trial Court Administrator.

Friday afternoon, I got a response from the Trial Court Administrator.  Guess what?  The trial court administrator is not in charge of making sure judicially prejudicial stuff isn’t hanging over the stairs.  I guess the county building administrator has that job!  Thankfully, the Trial Court Administrator forwarded my stuff over.

That was Friday.  Guess what was still hanging up today?  Yeah.  The dirty laundry.

Oddly enough, I was contacted by a newspaper reporter today.  I can’t wait to see what their story says.  Should be fun to see where this goes tomorrow!

Troy Davis… what are you people waiting for?

Troy Davis is a man whose plight I have been fighting for nearly twenty years.  Wait.  That’s not right.

Troy Davis is a man whose sentence I have been rallying against for the past couple of years.  Hang on.  That’s not right, either.

Troy Davis is a man I recently heard about.  I have put a lot of personal time and effort into sparing this man’s life.  As I write this, the Supreme Court denied his stay and it looks like he is about to be executed.  Whoa…  That isn’t exactly correct.

Troy Davis is a guy I just heard about.  His story scares me.  I signed a facebook petition and have been watching CNN as the execution approaches….  This sounds more correct.  But, not for me.

Despite people bemoaning the “broken system” the reality is that it’s not the system that has hacked everybody off, it’s the punishment.

In truth I avoid nearly all legal news.  I live this stuff.  Day in, and day out.  I don’t need the news.  That’s not to say that I am too burned out or worn to think about the law after hours.  Quite the contrary- anybody who knows me has probably heard more than their share of my legal opinions when I’m “off the clock.”  I don’t follow the legal news because it tends to highlight the stories of national and international attention.  Stories about people I don’t represent.  I have only so much mental energy to burn, and I focus on people I can directly impact… people who have come to me and asked for help.  They get my undivided attention.

So, I heard about Troy Davis yesterday.  I know very little about the case.  I know that everybody is outraged.  I know that Georgia has a long history of “issues” with the death penalty.  Don’t think so? Here, here, and here just to get you started.

It sounds like a fairly bad set of circumstances coupled with a very flawed system.  If it weren’t for a man dying, though, there would be little (if any) media outcry.  Despite people bemoaning the “broken system” the reality is that it’s not the system that has hacked everybody off, it’s the punishment.  The general public only cares about the system being flawed because a man is dying.

Think I’m wrong on that?  Where is the public outcry when somebody gets screwed on a retail theft?  Where are the chanting, protesting people bemoaning an unjust verdict on Unlawful Use of a Weapon?  Where are the Facebook petitions when an innocent man is found guilty of DUI?  Nowhere.  I would know, I’ve walked out of the courthouse after seeing this stuff.  Lock a man up for a “mere” 30 years, and suddenly it’s not news.

I’m not saying that people have to concern themselves with every minor case.  What I am saying is that if all of the people so wrapped up in Troy Davis’ case had worked this hard over the last 19 years, he’d likely be alive now.  What I am saying is that if people really feel that strongly, I wish they would harness that energy before the government strapped this prisoner to the gurney.

You angry about Troy Davis?  Volunteer some time.  It’s not hard to find ways that may actually make a better impact than signing an electronic petition or holding a cardboard sign.  The internet is full of charitable places looking for help (on both sides of criminal law).  Calling one is not as “cool” as twittering how bad you feel for Troy, but may actually make a difference.

I don’t know a lot about Troy Davis or his case.  I do know that a lot of people waited until the last minute to make a lot of noise.  I also know that right now there is a guy caged like an animal in your local county jail. He dosen’t deserve to be there.  What are you doing about it?

Bin Laden is not just a river in Egypt.

The morning of September 11, 2001 I showed up to work to find out that “we were being attacked.”  Not being sure what that meant, I did exactly what I do- grabbed my files and went to court.  When I walked into the courtroom the details were still fuzzy.  It wasn’t until after I finished a morning of helping the misguided youth of juvenile court that I figured it out.  Despite my insistence at that time that I was not willing to let 9/11 affect my daily life, change under the guise of “increased security” was foisted upon me.

When will we ask if it was worth it?

Some of that change was small and innocuous.  The McHenry County Courthouse put up a small landscape barrier outside the courthouse so, presumably, nobody could drive a truck into the first floor.  Lawyers previously given a pass through security at some courthouses were required to undertake the same security measures as the general public.  Airline baggage checks were required to ask us if our bags had been out of our site.   Banks were required to report a wider range of transactions to the federal government.

Other changes were not.  Nearly every courthouse got newer, “better” metal detectors and beefed up security. We were told by the appeals courts that “in this age of routine, soon to be universal” that “reasonable” security measures in the new era may not be more intense than what was reasonable before 9/11. (see U.S. v. Allman, 336 F.3d 555, 557-558, 7th Cir 2003, “If anything, it was irresponsible of the postal authorities to ship the box to Chicago without first x-raying it.”)  Even the McHenry County Sheriff’s office secured an intimidating, expensive armored personell carrier.

credit: http://www.firstelectricnewspaper.com/2009/08/lith-car-show-promotes-national-night.html

A lot has happened in the last decade.  Terror levels have risen and fallen.  Security measures have continued to increase.  Courts have seemingly expanded the spectrum of “reasonable” searches based on our new experiences.  The economy has tumbled.  Bin Laden has died.

Nearly ten years after I was wary of the impending reaction to the 9/11 tragedy, my reservation has morphed to frustration.  The economy is horrible.  Even locally, it looks like millions of dollars have gone into increased security measures.  When will it be time to ask if those dollars are doing what lawmakers think?

I am not saying that increased security measures were un-necessary.  Or that increased airport security is bad. Or that any security increases have been bad.

What I am saying is this:

My “everyday” life is affected by the post-9/11 security measures.  I pass through security 8-15 times per week at any one of a dozen courthouses I regularly visit.  All of them have different security measure in place.  Most of them have, presumably, received more modern equipment or better services since 9/11.  Many of them are now staffed with more people.

Ask any lawyer who regularly goes to different courthouses if some are safer than others.  You’ll probably get a chuckle followed by a rank-ordered list of courthouses that do not quite seem to be as secure as they look.  You will probably also get a list of suggestions on how to remedy that.  Many of those suggestions will cost less and be more effective than new body scanners, or whatever else is en vogue with the sales staff at security firms.  Metal detectors are rarely the weakest link.

We’ve spent a lot of money on increasing security at the courthouses in the last ten years. Presumably, the increased spending has lead to increased security.  At least I get the impression the “spending” authorities feel that way.  Despite all of the spending, it sure appears that some of the courthouses are no more secure than they were before 9/11.

It’s well past time we explore that presumption, and spend on measures that actually increase security.  Every dollar spent which fails in its effort to make a courthouse more secure is money wasted.  Some money we’ve spent has been wasteful.  Answering the questions of “Which money?” and “How much?” might be a first step ushering in a more efficient, more secure, post-Bin Laden era.

Until then, we live in a state of denial over how effective our security spending has been.

Illinois lawmakers want drug dealers at your local schools?

I have a practical take on the law. By that, I mean that laws which don’t produce their intended consequences need to be changed. Or repealed. Laws that don’t have the everyday results that they should are merely useless rules. I hate rules.

What is worse than laws that fail to live to their intended consequences are laws that harm those they are intending to protect. There are a lot of them. Some of the biggest, meanest, most “get tough on crime” laws out there might cause innocent people to become harmed. DUI laws making the roadway more dangerous? Yeah. Narcotics laws encouraging drug transactions near schools? Absolutely. Don’t believe these types of laws are on the books? Nobody ever believes me…

Gangs?  Guns? How close can we get them to the local park?

Except, of course the Illinois General Assembly. Your legislators are contemplating change of what is probably the easiest, most politically safe of these laws. There is a bill in the pipeline that may change the Drug Induced Homicide law. This is long overdue.

For those not in-the-know, the current law punishes just about anybody who provides an illegal narcotic to somebody who subsequently dies from that narcotic.  It doesn’t rise to the level of requiring the “provider” to sell the drugs.  You may just be handing them from one person to the user.  Passing them across the table.

The problem is that this law makes no exceptions.  So, as things go in the drug world, people are splitting drugs- maybe passing a baggie back and forth- and one of them accidentally overdoses.  Does the other user call an ambulance?  Hell no.  If the overdose victim dies, the other guy is looking at spending some quality time caged up like a dog.  The current law encourages the very homicide it is attempting to punish.

The new law provides an incentive to the second user to call the police.  To help.  To do everything possible to prevent the overdose from turning into a homicide.  That makes more sense.

Before anybody chimes in to let me know that drug users get what they have bargained for, I’m making no judgment about the legalization of narcotics, or the character of those who use them.  That is not the issue.  I am saying that if the Illinois General Assemby is going to put money, time, and effort into drafting laws, then they should at least make sense. Or, at least not be circular.

Nevertheless, the criminal code is packed with these circular laws.  Call me crazy, but I think that criminal laws should do everything to keep kids at schools and parks safe.  Places where kids hang out should be sanctuaries free of the stray bullets and shady dealings of drug pushers.

You want people dealing drugs near your kid’s school? You got it! Gangs?  Guns? How close can we get them to the local park?  Don’t believe me?

Illinois law punishes the sale of narcotics near a school as a Class X felony. On the surface, this looks great.  A class X felony is the most severe class a crime can be, unless it’s a murder.  Let’s hammer those drug dealers hanging out on the school playground!

Wait just one minute.

Picture the following: You’re a young, aggressive cop.  You’re 2-3 years past your initial training and starting to get the job figured out. Because you’re young and you look it, the department assigns you to the narcotics task force.  You’re doing exciting undercover work.  The task force is funded in part by grants from the state and feds- and your mission is to get the biggest and baddest dealers of the street. Any patrol cop can pick up a gram of weed or trace amounts of cocaine here and there.  The task force goes after the big fish, and publicizes major busts to show the public it is making a difference.

You work hard on the task force.  You get a petty user to flip and introduce you to his dealer.  You go make some small buys from the dealer.  He has you meet him in a parking lot.  He has you meet him at the mall.  The dealer gets comfortable with you, and now you’ve got his cell phone and deal with him directly.  Time goes on, and your buys are more frequent and a little larger… not large enough to be considered a big deal to the task force, though.

One day you text him telling him you need drugs.  How much?  Whatever he’s got.  He says he can be ready in an hour, and asks if you can meet by the mall.  “I’m on the other side of town… any way you can meet me over here?”  He’s done this before, so he trusts you.

What do you do?  You give him a location near the school.  Why?  Because today is the day that you and the rest of the task force are taking him off the street. And you want to catch him red-handed.  With drugs.  You also want to take him down for as long as possible. You want the class X, and he needs to be near the school for that to happen.

It all sounds reasonable, right?  Get that guy off the street for as long as possible?  Sure.   The aim of the special rule for selling drugs near a school is keep the drugs away from the school, though.  It’s putting those kids it attempts to help in greater harm.  By making it a bigger bust, though, there is incentive to get the dealer, his drugs, and possibly his firearms near that protected sanctuary.

You think it doesn’t happen?  I’m guessing you’re not a criminal defense attorney in Illinois. Or you haven’t been very long.  It happens all the time.

It’s easy to bury the practical realities and support politicians who pound their fists and claim to be “get tough on crime” politicians.  It’s not easy to look at how these laws actually play out in the real world.  Again, I’m not taking a position on drug laws- I’m saying that if you make the punishment uniform across-the-board less dealers (including their drugs, guns, and other problems) would be near schools.

That’s just the start of it, too.  You think DUI laws should get drunks off the road?  Sometimes they do, sometimes they absolutely do not. Maybe it’s not a law, but what about MAAD?  Should they be helping obtain guilty convictions, or not guilty verdicts after trials?

A law that doesn’t do what it is designed to do is just a bad rule. I hate rules.