Why George Zimmerman won’t just plead guilty and save us all some money.

What plea to enter and at what time you enter it can have as much of an effect on the outcome of the case as the underlying “truth” of your innocence/guilt.

I’m not ever really up-to-date on current affairs. I know you know this.  Usually I have to google “Nancy Grace” to find out what the masses deem important legal topics.  I have been keeping my eye on the Treyvon Martin thing, though.

Oddly enough it’s not a huge topic among the local criminal defense bar.  Probably because it’s not much of a surprise.  We see this stuff all the time, even if Al Sharpton doesn’t get involved.

Anyhow, “big” cases always draw a lot of attention to one of my favorite things in criminal law: the plea of not guilty.  Why do I love it so much?  For a few reasons.  First, a plea of not guilty in a “big” case really seems to upset the masses.  I love upsetting the masses.  Especially when it causes people to take a closer look at the criminal justice system.  Second, it’s fun to say.  Try dropping it into non-legal conversation any time somebody asks you if you did something and you’ll see what I mean.  “Hey, did you remember to take the garbage out?” “Not guilty.”

I find it amusing that people go nuts when somebody pleads not guilty at an arraignment in a big criminal case.  The media loves to use that in headlines.  Don’t believe me?  Watch what happens if George Zimmerman gets charged with killing Treyvon Martin.  He’ll enter an initial plea of not guilty and people will go nuts.  “How can he say he’s innocent!”  Or, “Why won’t he just plead guilty and stop wasting tax money.”

How could he say he’s not guilty?  I’ll tell you how. Because he can, that’s how.

He’s got a constitutional presumption that he is, in fact, not guilty.  Everybody charged with a crime does.  Don’t like that? Ok. Change the Constitution.  Until you’re willing to do that, things will keep moving along like they have since we booted the Brits out of the colonies and started governing ourselves.  That pesky Bill of Rights is always messing up our lives, isn’t it?

Forget how he can do that, why would he plead not guilty?  Everybody (including himself, of course) know’s he guilty, right?  Let’s pretend that’s true, for a minute.  If he’s my client, he’s still entering a plea of not guilty.

Why?  Because even when you want to enter a guilty plea, there is a time and a place for everything.  What plea to enter and at what time you enter it can have as much of an effect on the outcome of the case as the underlying “truth” of your innocence/guilt.

In my fictional situation, Zimmerman would be asked to enter a “formal” plea at one of the initial court dates.  Unless Florida works in a manner completely different than Illinois (which, I hope, it does), the Prosecutors will walk into that arraignment knowing all the details of the police investigation, having been informed of what all the witnesses (including Zimmerman) had to say, knowing what testimony and evidence the grand jury witnesses revealed, and knowing the details of their case from front-to-back.  On the other hand, Zimmerman’s lawyer will know what his client told him.  At that point in the case it’s like the two sides are playing poker, with the prosecutor having seen everybody’s cards and the defense knowing only half of his own cards.

In this business, information is everything. “Facts” are the cards.  Want to see a nervous lawyer?  Watch a one having to defend a trial in a case where there is no requirement that the lawyers exchange information beforehand.  In this game, as in life, knowledge is everything.  Just ask G.I. Joe and Kool Moe Dee .

What’s that got to do with George Zimmerman, Treyvon Martin and every person involved in any criminal case that ever got Nancy Grace’s guts in an uproar?  No attorney in their right mind is ever going to enter a plea of guilty until all of the information has been exchanged and “we” know what “they” know… because they might just be wrong about something.  It’s happened in the past.

It’s got nothing to do with guilt.

It’s got nothing to do with tax money.

It’s got everything to do with the Bill of Rights and knowledge of the case.

I don’t know if Zimmerman is going to get arrested and charged.  With every passing day it does look less likely.  I do know, though, that if he’s charged he’s going to enter an initial plea of not guilty.  I’d expect nothing less.

State of the Union

It might actually be easier to save those millions by allowing prosecutors to dismiss bad cases on the first court date.  Of course, prosecutors who drop cases aren’t tough on crime, and we’re not about to let any softie State’s Attorney get arrested in these parts!

The internet, my #1 source of completely accurate news reporting, tells me that President Obama will be doing his little “State of the Union” address tonight.  I’m not exactly a White House insider, but I’ve got a pretty good idea of how it is going to go.  Things have gotten better over the last year. (applause from roughly half the room). Things are looking up (applause from about half the room). Things are headed in the right direction (applause from about half the room). Under his leadership, the future is nothing but bright (half the room standing and clapping).  He might be right. He might be wrong. I don’t know. I’ll be too busy watching the Blackhawks v. Nashville to pay attention, really.

What I do know, though, is that he’s probably not going to mention much about criminal law. It’s probably not even on his (or his speech writer’s) radar.  People’s rights and freedom aren’t all that important anyway, right?

The reality is that it’s nearly impossible for an elected official to have a rational discussion about criminal law without losing votes- regardless of which party they choose to follow.  The voting public has, time after time, blindly followed “get tough on crime” politicians… even when that tag line has little real substance.  So, he’s going to continue to be “tough on crime.”  Why bother even bringing it up?

I’ve never been accused of being an elected politician.  I haven’t been elected to anything since I was elected (mistakenly, I think) vice-president of my Junior class in High School.  So, I guess there’s no harm in having a real opinion. I’m sure this will cost me some votes in the next popularity contest, but if I were about to give the State of the Union address, here are two things I’d be sure to touch on (whether or not they garnered applause):

Sex Offender Laws are not working and need serious reform.  Sex Offender reform starting with Megan’s Law has had little, if any, real effect on changing how the world works.  While there is a lot of hype when registered sex offenders get arrested, you don’t really hear about Police using that registry much to prevent crimes.  There is, certainly, the theory that parents and neighborhood-watch groups can “keep an eye” on registrants and thereby prevent further crimes.  Of course, there is also a very well developed theory that those same people would actually be more productive by keeping an eye on the non-registered adults in their children’s lives. I’m not meaning to debate theory here.  I did enough of that in Philosophy classes. As I said before, I’m a very practical person.  Show me how many sex crimes are prevented by these laws.  Show me how would-be victims don’t become victims because these laws exist.  I’ve done my best to find these, and I can’t.  I’m not saying that there should be no sex offender laws. I’m just saying that the ones we have enacted should make a difference.  The currently enacted laws now have along history of doing just about nothing.  Yet, we still pay legislators to make superficial tweaks to them every year or two.

We can save millions by changing the way our police get trained. Cops, in Illinois anyway, begin their ascension to copdom at the Police Training Institute (PTI). It’s a 10 week, exhaustive, crash-course on everything you need to know as a cop before you go for your “field training”.  Everything from how to use “verbal judo” to how to write a police report.  After going through the PTI they then get field trained by an “experienced” officer… somebody who probably also did the PTI about 20 years earlier.  After that, some of them get updates on the law… periodically.  They don’t really ever get tested on it again.

Most cops will never have to fire their gun in the course of their employment.  Nearly all will have to testify in court- most of them many (even hundreds) of times.   Oddly, modern policing theory is that the officers should have their shooting skills tested more than their legal knowledge.

In Matt’s world, if there is anybody who should be on top of the daily changes in criminal law and search and seizure issues it’s the men and women out on the streets making the arrests.  I read DAILY email updates on appellate court opinions and law changes.  So should they.  Unfortunately, that is not the “state of the union” today.

How does that cost taxpayers millions?  Through time and resources wasted on trials, hearings and court proceedings because of a search, arrest, or complaint that wasn’t legally sufficient to start.

It might actually be easier to save those millions by allowing prosecutors to dismiss bad cases on the first court date.  Of course, prosecutors who drop cases aren’t tough on crime, and we’re not about to let any softie State’s Attorney get arrested in these parts!

I suppose, as a good American, I should watch the President’s speech tonight.  Maybe I’m wrong.  Maybe it won’t be filled with “half-room” applause and talk of a rosy future. Maybe he will tell us that the State of our Union is that he’s going to push broad criminal law reform upon the States (much like Bush did with seat belt laws), and save us millions.  Maybe.

I just hope the Blackhawks can pull this one off. We really need to win this game.

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!

Sometimes you are guilty before you are even charged

It’s not easy doing what we do.  The general public thinks prosecutors are too easy on crime.  The police labs get to test everything before we get to see it.  New things always pop up in trials that aren’t in any police report that was given to us.

Worse than all of that, though, is the information that is passed on by the police early in a case.  The person who controls the information is in the drivers seat for controlling opinions.  If you think about it, that’s really what trials are… a contest of facts used to control opinions.

In nearly any big case, the police get first crack at spinning those facts.  Either through press releases, press conferences, or interviews with the media, the police have the first crack at getting out their side of the story.  That news story you just watched about the guy who was arrested 5 minutes ago?  The information came from the police.  Sure, in a follow-up story 6 months down the road you might see a defense attorney quoted.  Not for that first, important impression, though.  This might not be as troubling if the police were always correct in their initial reaction.

I’m not blaming the media, really.  They have to report based on what they know.  Seeing as the criminally accused like to wait until the absolute last possible minute to call a lawyer (usually even after they have already talked to the police), the cops are the only one who could talk to the media.  Nobody else knows anything.  That initial release of information very well may have a huge impact on whether or not somebody might get a fair trial.

That’s why this article in the Daily Herald is a bit perplexing. The police, to their credit, seem to stay as objective as the can.  Clearly they are looking to charge Mr. Ferrigan with the crime.  They are upfront in saying that there is not enough evidence yet, though.  This seems appropriate.

My gripe in this case is with the paper.  Most notably, with the picture.  This guy hasn’t been charged in this murder. Yet, the headline “Hanover Park Murder Probe Continues” is running on the front page with the picture.  What’s wrong with the picture?  It’s a mug shot.  Ferrigan is wearing a jail-issued top.  This mug shot has nothing to do with the murder probe. Nothing.  It’s from a different case.  A little suggestive, don’t you think?  How is that guy ever going to get a fair trial?

I’m not sure who made the call to run that picture.  It very well may have been made by editor/author Charles Keeshan.  I know Keeshan.  He is a talented journalist who has uncovered some fairly exciting stuff, and an extremely fair guy.  It’s just that this picture seems to imply much more than the actual, written story would suggest.  Or that the police are even willing to say.

Obviously my perspective is different than the news outlet’s.  The paper is trying to give its readers as much info as possible.  For whatever reason, readers like to see how people look.  I get it.  I just wish they wouldn’t run that picture as part of an article where a guy hasn’t even been charged.  That doesn’t seem like it’s asking too much.