About those girls who stole the Girl Scout cookies…

Remember when I mocked those girls who stole the cookies?  Maybe you don’t. I mean, it was all the way back in last week.  Well, it turns out they’re not alone.  Apparently stealing cookies from Girl Scouts is something of an epidemic.  At least these guys weren’t as arrogant when they were arrested. We hope.

Anyhow,  I know after watching that video with the two girls last week you were completely convinced that the Great Cookie Caper was a one-time, completely out of character, horrible decision for those two.  The type they’d learn from, move on, and chuckle about when they’re older.  The kind of “dumb kid thing” that kids sometimes do.

I’m here to tell you that you’re correct. Maybe.  I mean, while it seems that Cookie Heist was the only time that daring duo liberated dessert from little kids, it’s not the last time one of them was in trouble.  Serious trouble.

But, you knew that was coming anyway, right?  Of course you did. Everybody who saw the video did.  Everybody who watched the first video is saying “I told you so!”  Including the judge.

If you look at Ms. Wood’s subsequent legal problems, it doesn’t look like she was cut much slack.  I wonder how she feels about how she acted in that video now.

Lesson learned?  Don’t talk about crimes you may or may not have participated in.  Not to the police. Not to your friends… definately not to the T.V. reporter.  Especially if your’e going to come of as arrogant and unremorseful.

 

Prostitutes, nuclear weapons, and lawyers

These are the three things ruining the word: Prostitutes, nuclear weapons, and lawyers.  At least according to this guy.

Remember last week, when a Pimp taught us to put our best foot forward when we want somebody to believe us?  That doesn’t just go to what you say. It goes to your entire presentation.  Like, for instance, if you’re going to ramble on in a (mostly nonsensical) video about the entire legal profession, you might want to empty the garbage can and clean the margarita mixer on the counter behind you.  They are a little distracting.

What was this guy saying, again?

 

 

If they weren’t guilty, the police wouldn’t be searching.

You know how I’m always rooting for the bad guy?  How I’m this immoral guy who is just out to help criminals “get off.”  How all “these people” are guilty of something and I shouldn’t keep using all these technicalities?  How I keep telling people not to talk to the police or ever let them search when, clearly, if they’ve got nothing to hide they shouldn’t have a problem talking?

I’m wondering what these two Star Trek fans think about that advice.

Drew Peterson, technicalities, and your cats.

Until something with Herrera changes, though, you can tell those cats to grow thumbs and learn to use a can opener themselves.

I don’t know how I sleep some nights.  I mean, between representing all those people I “know” are guilty and having freed so many people on “technicalities” I’m a pretty reprehensible person.  That’s what people tell me.  Essentially.

I mean, they don’t tell me directly.  They tell me things like they “couldn’t do” my job.  Or that they “would have a hard time” representing somebody they “knew” was guilty.  Plus, they use the term “technicality.”  As in “so, he got off on a technicality?”

Technicality.  This sounds like a bad thing.  Like somebody “got away” with something.  Somebody like, for instance, Drew Peterson.  That guy might get off on some sort of technicality.  Never mind the fact that they changed the state law just to try and prosecute him. Or that the government’s own experts originally said she wasn’t murdered.  It’s always a technicality.

Don’t get me wrong.  We’re on the same team as far as wanting Peterson locked up.  We have different reasons, though.  You want him locked up because you think he killed a half-dozen people.  I want him locked up because he was an annoying, egotistical, loudmouthed wind-bag before he was taken into custody.

If Peterson walks, its going to be blamed on that too-often-used technicality of being not guilty.  By that, I mean it’s that one technicality where either the state can’t/won’t/doesn’t prove him guilty beyond a reasonable doubt or that he didn’t actually do what they say he did.  Unfortunately it is the state’s burden to prove these things… that poor, poor, poor state and their nearly insurmountable burdens.

Daily Herald article on technicality
If the government doesn’t prove something, is that a technicality?

We should do away with that technicality of forcing the state to prove people guilty.  Then we could lock up all those people we “know” are guilty, right?  While we are at it, we should eliminate some of those other pesky technicalities like the Bill of Rights and the State Constitution.  If we got rid of all that stuff, we could probably lock this Peterson fella up without the trouble of a trial.  Maybe O.J., too.

Believe it or not, I sleep fine at night.  I’m with you on wanting to eliminate some of the technicalities and bringing “truth” back to the system, though.  Especially when we’re talking about the technicalities that prosecutors don’t gripe about.  How come nobody ever asks me about those technicalities?

Wait.  What’s that?  Are we not on the same team anymore?  What sort of technicality is that?  If the burden of proof and Bill of Rights are a defense attorneys’ favorite “technicalities” there is a LONG list of technicalities a prosecutor loves.   Technicalities like that one the Supreme Court invented in the case of Herrera v. Collins.

You know, it’s the one where you can be completely, truthfully actually not guilty and you still can’t appeal.  I mean, do you ever wonder what happens if you are charged with a Federal crime you absolutely didn’t do, but the prosecutor convinces the 12 jurors that you did?  Maybe somebody wrongfully identifies you.  It does happen.

Now you’re locked up, they’re about to throw away the key, and you’re begging your lawyer to appeal?  No sweat, right?  Your lawyer is going to appeal this thing and show the Federal Appeals Court how you’re actually innocent.  You’ll be out by lunch, right?  Maybe out by dinner at the latest.

Wrong.

You’re going to appeal that thing and the appeals court is going to use the Herrera case to tell you that a “freestanding claim of actual innocence is no basis for appellate relief.”  Do you know what that means? I do.  It means that the United States Supreme Court says you can’t appeal just because you’re not guilty.  Seriously. Let me say that again.  You can’t appeal a case in Federal Court just because you’re actually not guilty.  That appeals court doesn’t care that you’re not guilty and have starving cats waiting for you to get home.  Hell, those kittens can’t open the Meow-mix themselves.  Until something with Herrera changes, though, you can tell those cats to grow thumbs and learn to use a can opener themselves.

It’s not like this is some obscure thing that courts ignore, either. It’s used by prosecutors on appeal all the time.  I’m sure people ask Federal Appeals Prosecutors how they sleep at night, too.  Them and their technicalities!

Herrera is but a relative newcomer to the prosecutor technicality arsenal.  They’ve got technicalities going back hundreds of years.  Ever hear of felony murder?  It’s the one where, when you’re driving to the  7-11 for some Funyons and Redbull and your buddy in the passenger seat thinks it would be funny to steal a ho-ho by telling the clerk he’s got a bomb.  He’s telling you this as you’re driving there and you guys laugh thinking it’s funny.  When your buddy hands the clerk a note saying “I have a neutron bomb and I’m going to use it unless you let me take this ho-ho, kthnxbye” and starts to walk out, the clerk guns him down from behind.  

The clerk kills the robber (your pal).  Justice done?  Not yet.  You drove him there knowing he was going to “rob” the store.  Your taking part by driving him makes you just as guilty of a robbery as if you had walked in with a gun and stolen all the cash.  Even better, your’e also guilty of murder.  The technicality of felony murder means you’re looking at decades, if not a lifetime, behind bars because anybody died for any reason while you were committing a felony.  Don’t forget to smile for your mug shot.

I’m not saying you should have much compassion for somebody who thinks it’s funny to rob the convenience store.  I am saying that the punishment should fit the crime, and you shouldn’t ever be found guilty of Murder on such a weird technicality.  Oddly, people don’t ask me about this technicality.

And, don’t even get me wound up about possession of drugs.  You know how “possession” requires that you actually possess something?  Wrong.  Illinois courts tell us that possession can be something called “actual” possession.  The flipside to this, of course, is possession doesn’t have to be “actual” possession.  You can possess something without actually possessing it?  Sweet!

Makes perfect sense.  So much so that I’m headed to the bank right now with a whole bunch of money I don’t “actually” possess.  If the bank gets snotty, I’m going to tell them that I “constructively” possess about a million dollars I’d like them to credit to my account.  When the bankman tells me I can’t deposit cash I don’t possess, maybe I’ll ask him how he sleeps at night refusing my deposit on such a technicality.  After all, I need to get this fake money on my account so I can go buy that cat food my felines so desperately need. This is a matter of cat survival.

I don’t know what’s going to happen in Peterson’s case.  Maybe it ends with a “technicality” and maybe it doesn’t.  I suppose we’ll all find out soon enough.  I just know that the word “technicality” is a bad word to describe complex aspects of the law.  I also know that no cats were actually harmed in the writing of this post, and that, even though I don’t have any cats, I wish all cats of the world a healthy, hearty meal tonight.

Remembering Bill Gracik.

Not a month goes by that I don’t hear the name Ralph Madsen.  Who is Ralph Madsen? I don’t really know.  He has been dead for sometime. All I know is how people talk about him.  Depending on who is talking he was either a legend of a trial lawyer, or a terribly misguided attorney.  Either way, I hear about him a lot.  Something in court reminds somebody of “something Ralph used to do.” Or, some lightly-experienced lawyer pulls some trick he thinks he invented and somebody who knew Ralph has to explain that “Ralph was doing that in the 50’s.”

You know how you know you’re a legend?  The people remember you.

Back when I was fresh out of law school, I used to do something they didn’t like at the Public Defender’s office.  Actually, I did a lot of things they didn’t like. One, in particular, though- I watched trials. Lots of trials. I watched hours and hours of more experienced lawyers putting that experience to work.  I thought it was a good way to pick up new tricks and to learn new things.

There were a couple lawyers I loved to watch.  Guys who were masters of their craft.  Criminal lawyers who could take the facts of a case- any case- and spin a compelling story.  One of them had left the Public Defender’s Office a few years before me.  That guy was William Charles Gracik.  Nobody called him William, though.  Nobody really called him Bill, either.  Everybody called him by his street name: “Big Smooth.”  Or, if you knew him personally, it was just “Smooth.”

You know how your know you’re a legend? Other lawyers give you a nickname like “Big Smooth” and it sticks.

Smooth was a little older than me- maybe 10 years.  In a lot of ways he was just like the other great criminal defense attorneys around- he liked knowing about his rights, he didn’t care too much for the government’s use of police powers, and he enjoyed the thrill of thinking on his feet.  He was missing one trait that motivates the rest of us, though.  He wasn’t full of piss and vinegar.  Or, if he was, he sure didn’t let on in front of the judge or jury. Ever

That’s why we called him the Big Smooth… the legend.  That guy’s feathers never got ruffled.  He took everything in stride, and kept on going.

I learned a lot from him. I was lucky enough that he actually flipped the tables on me at my first jury trial.  When I finished closing arguments, I looked back to see that he’d watched the whole thing.  In Big Smooth fashion, he told me what he thought of the closing.  He told me that I did good, but pointed out some things I could have done better.  Encouraged that Smooth thought I did well, I asked him which way he thought the jury would go.  Without hesitation he said something to the effect of, “oh, you’re going to lose.”  And, I did… after only 9 minutes of deliberation.  I still remember the advice he gave me that day, as well as a lot of what he’s told me over the last 12 years I’ve known him.  You don’t disregard the advice of a legend.

Over that time I got to know Smooth well.  He gave me advice.  He talked with me about cases and trials.  He was my landlord for a few years.  He kicked my tail at card games.  I spent a weekend together with him and another friend in Wisconsin and we watched hockey and talked about fishing.  He had the quickest mind of anybody I’d ever met.  It was amazingly accurate, too.  Headed to Vegas to place a wager on the NCAA tourney?  Call Smooth. He will nail the picks. Seriously.  I’m glad to have gotten to know him as more than just a lawyer I watched.

Of course, he wasn’t perfect.  People who didn’t get to know him when I did (or like did) might remember him for the imperfections.  I suppose if you didn’t know the Smooth when he was at his “Smoothest” you have only the memories you know.

I’m not perfect, either. Neither are you.  I guess none of us can really control how we’re remembered.  Ralph Madsen would be the first to tell us that.

All I know is that there’s going to be a day when I see some new-jack lawyer puff out his chest over some legal trickery he thinks he invented.  Or, maybe he’s going to nail a closing argument and think winning the case is a foregone conclusion.  Somebody, no doubt, will tell the kid about Ralph Madsen.  I won’t be shy to take that opportunity to chime in and tell that kid the Legend of Big Smooth.  I’m going to tell him that Smooth was doing that stuff in the 90’s.  I’m going to talk about how Smooth invented, used, and forgot more legal angles than any of us will ever come up with.  I’m going to tell him that I learned more by watching Big Smooth do jury trials than I ever did from anybody in years at the Public Defender’s office.  I’m going to tell that kid that Big Smooth was one of the best I’ve ever seen, and that it’s too bad that kid wasn’t lucky enough to watch him in his prime.

Thanks, Big Smooth, for making me a better lawyer.  Your legend will live on.

Godspeed, Bill.  William C. Gracik 1961-2012