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

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

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

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

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

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

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

I’ll say that again: It’s Immoral.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Those silly legal scales

For 2011, I’m thinking that the Lady of Justice needs to be updated.  I’m for getting rid of the blindfold, ditching the scales and actually just using the likeness of my Great Grandmother.

Three guys are walking down the street and get confronted by a “victim.”  One of the men in the group pulls out a gun.  The other two in the group run away as the guy with the gun shoots.  The victim is struck once but is not critically wounded.  The shooter flees.

A witness tells police he saw three white guys running down an alley away from the scene.  That’s all the police have to go on.  What should they do?  What do they do?

They do what they’ve been taught- start taking people into custody.  Every guy in the area gets cuffed, put in a car, and locked up at the police station.  Guys walking down the street.  Guys at the 7-11.  Even guys sitting at home, but who might be “the usual suspects”.  Soon the police have three times as many people in custody as there were guys at the shooting.  With at most 3 guys there, the police have to know most of the people in custody could not possibly have been involved, right. How is that fair?

How would you feel if you were one of them?

You would think that police arresting every white guy in the area with nothing else to connect them to a crime might be something to make the news.  Who is going to tolerate the police locking up so many innocent people for no reason whatsoever?  Minding your own business is probable cause for what crime, exactly?

This stuff happens all the time.  All the time.  These facts are actually loosely based on a police report I recently read.  And, it did make the paper.  Not because the number of people taken into custody, though.  The newspaper article (based on information released by the police, of course) talked about how two men were arrested and a warrant was issued for a third.  It said nothing of the several other men who were bound with cuffs and caged like animals until the police decided they could leave.

I have a theory on why that part wasn’t included.  It’s not only because the police didn’t include it in their press release.  It’s because the men were actually black.

A big part of why I love this job is that I get to keep the police in check.  When they do something I don’t like, I get to push back.  It’s fun, but it’s also a difficult, uphill battle.  Despite that, I keep at it.  Mostly because I worry that someday I’m going to be the guy minding my own business but getting arrested for nothing.

I have simple needs.  The need to know I can walk down the street free to mind my own damn business without being arrested is one of them.  My need to know the police won’t be breaking down the door at night while I sleep is another.  So, it bothers me when other people walking down the street get “detained” for little reason.  It seems to me that an extremely vague physical description of three guys (only one of whom actually harmed anybody) shouldn’t be enough to lock up every guy in the area.  Yet, it happens.  So much so in many communities that it isn’t even news.  I know that if it happened in my neighborhood, it would be a fairly big deal.  Especially if it happened over and over and over again.

Let's get rid of this lady.

Justice is supposed to be blind.  You know those cliché scales that are on the business card and web page of every unimaginative law firm?  Despite the fact that many law firms completely screw it up, those “scales of justice” are supposed to be equally level.  The scales are actually being held by the Lady of Justice who has a sword in the other hand and is wearing a blindfold.  The blindfold, obviously, is to symbolize that justice is blind.  The equal scales are to show that justice is not only blind, but equal.  In theory, anyway.

For 2011, I’m thinking that the Lady of Justice needs to be updated.  Freshened up a bit, if you will.  I’m for getting rid of the blindfold, ditching the scales and actually just using the likeness of my Great Grandmother.  While the Lady of Justice makes for great imagery (and her scales look swell on business cards), my Great Grandmother more accurately reflects reality.

Why?  American “Justice” isn’t blind.  It’s also not equal. Like Grandma, it sees what it wants.  Also, like Grandma, it’s at least a little bit racist.

Now, before you go judging my poor, old, dead, Great Grandmother, it’s not like what you think.  She never locked up some kid who was just walking down the street (minding his own business).  She did not, however, trust Japanese people.  You bomb Pearl Harbor, and Grandma is going to hold a grudge.  For 45 years.  With the unfortunate demise of Grandma in the late 80’s came the fortunate demise of the grudge, though.

Nevertheless, a little bit racist is a little bit racist.  It’s no better for Grandma than it is for the justice system.  So, I nominate her as the new Lady of Justice.  She would be flattered, really.  Then we could put up “New Lady of Justice” statutes all over the place.  They could serve as a reminder that people going for an evening stroll might just get you locked up…. and that it probably isn’t even out-of-the-ordinary enough to be news.  Until then, I’ll just keep doing my best to push back.

Fairness wears an orange shirt

It’s been a week since I sent a letter to McHenry County officials.  The issue of the shirts was on the agenda for yesterday’s meeting among building administrators.  I don’t know what happened. All I know is that the shirts are still up.

As promised, I have applied for a permit to put up something I’m calling the “Orange Shirt Project.”  The language in my permit was “inspired” by that for the current t-shirt display.  And by “inspired” I really mean that it copies their permit… nearly word-for-word.  I don’t see how it can be denied.  My permit requests permission to begin the display on 12/1.  This should give me time to get it all organized.

Jail is not a joke.  This is not a joke.  Justice is not a joke.  So, I’m looking for some help.  I need to hear from those people whose lives have been negatively impacted by bogus allegations of wrongdoing.  Maybe you were arrested for a domestic battery you did not commit?  Did you ever get kicked out of your house by an order-of-protection based on lies?

I want to hear from you.  This stuff happens all the time.  Here is our opportunity to “educate” the public.

My goal would be to provide several of you with an opportunity to put a “human face” on the problem of being wrongfully accused.  I can provide orange shirts (matching the orange shirts given to McHenry County inmates) and a sharpie to design the shirt.  Your shirt will not display your name or anything that might identify you. It will only have your message.  The message you think the world needs to hear.

I do not want people with current cases pending.  I think it is impossibly unfair that the shirts hanging now may have been made by witnesses on pending cases (we do not know).  It would be just as unfair for us to do the same. So, we will not.

If you might be interested, please send me an email (  I think we can put together a moving, educational display.    Let me know if you would like to help.

Consider this required reading

I just came across this page and love what I’ve read so far. Most of the criminal law stuff on the ‘net is fluff and marketing. Are you really getting “case updates” off of blogs instead of official pages? I didn’t think so. This guy is a straight shooter.

I don’t know how to set up one of those bookmark things. I’m posting this so that I can always find the link.