Category: Uncategorized

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

 

 

Yay privacy!

Facebook is evil.  I’ve explained this before.  I mean, it’s a great place for people to press a “like” button and feel like they’ve done something when they’re actually not doing anything.  It’s really not for me, though.  This is, perhaps, the reason nobody “likes” my facebook page.  Maybe.  At least I make up for it by being a total sensation on Twitter.

Much to my chagrin Facebook is all over the news again.  Our Govenor, Pat Quinn, signed a law last week preventing prospective employers from asking interviewees for their Facebook login information.  And the soon-to-be-interviewing college kids who have spent the last 5 years posting their drunken escapades rejoice.  This law is necessary to protect people’s privacy rights.

Yay for privacy!

Gun control is also all over the news right now, too.  Unless you’ve been living under a rock you know that the new Batman came out a couple of weeks back.  It’s pretty good.  News reports out of Aurora, Colorado, however, seem to indicate that an individual out there might have gone on some sort of a shooting spree resulting in the deaths of several theater goers .  Then there was the shooting at the Sikh temple this weekend.  This is bad.

Governor Quinn to the rescue again.  He’s apparently looking to make sure there’s never another Aurora, Colorado or Oak Creek, Wisconsin mass shooting by passing gun control laws in Illinois.  Maybe he’s trying to prevent one in Aurora, Ill. That part isn’t clear.

The fact that the Facebook and gun control stories came out on the same day last week was odd. To me, anyway.

When I hear people talk about their “rights” my ears perk up.  I like my rights.  I like using them to frustrate the government.  You can say that having, knowing about, and using my rights are a bit of a hobby of mine. Maybe more than a hobby.  Call it more like a job.  Protecting people’s rights is really the essence of criminal defense.  It’s also fun.

Your rights can come from a lot of places.  The most powerful rights come from the first 10 amendments to the United State’s Constitution.  Or, as I like to call it, “the bill of rights.”  The bill of rights talks about a lot of things the government absolutely, positively, without question cannot do.  No question about it.

The bill of rights has some pretty cool stuff, too.  Freedom of speech? It’s in there. Your right to be free from unreasonable searches? Yeah, that’s in there, too.  As is your right to remain silent (which, we have discussed, people love to know about but hate to use).

It’s got some lesser known, but equally powerful rights as well.  Freedom of the press? Yes, they are free, too.  You want to “petition the government for redress of grievances?”  Petition away… the first amendment says they can’t stop you.  If they try, the Eighth Amendment will give you a right against excessive bail while you wait for your jury trial (which is protected by the Seventh Amendment).

What makes me testy is when people make up rights.  Especially if they’re making them up to win some sort of dumb argument.  You have a “right to know,” don’t you? Not really.  That “right” was fabricated by a bunch of journalists to justify their being nosy.  Don’t get me wrong. It sounds awesome, and I’m all for it.  It’s just not real.

And, that brings us right back your right to privacy.  It’s not real, either.

I take that back. It’s real.  More real than the “right to know,” anyway.  It’s just not really in the constitution.

Oh… it is?  Find it.

Did you look?  Didn’t think so.  Don’t be lazy. Go ahead and look. It will take 30 seconds. Click here, then do a word search for “privacy”.

If it’s not really in there, how can it be real?  I’m not going to bore you with the legal mumbo-jumbo, but the Supreme Court has ruled that the other amendments essentially look like they are drafted so that you have a general right to privacy.  So, you have something of a right to privacy.

Again, yay privacy!

Where am I going with this?  I’m going right back to the second amendment.  Where the bill of rights doesn’t directly talk about privacy rights, it does directly talk about your right to “keep and bear” guns and also be the “well regulated militia” your survivalist friends are always talking about.  Yay guns, right?

This is where the shootings at the Aurora, Colorado showing of Batman highlight a bit of a problem in current popular Illinois opinion: Gun control should be expanded because people are dying, and privacy rights should be expanded because we like to be as private as possible.  The problem there is that gun rights are explicitly protected by the constitution. Privacy rights are not.  And, now you’re yelling at your computers screen telling me I’m an idiot.

I’m not saying I’m not an idiot.  I am saying that there seems to be a lot of inconsistent opinions flying around right now… even by the Governor.  Do you think the second amendment prohibits almost all gun control?  Good.  Just make sure that you read the same into the fifth amendment next time you see a defense attorney complain that his client’s right to remain silent was infringed.  Or, be sure to take such an expansive view when you hear about the police searching somebody’s house.  Don’t forget to rejoice when the press publishes details about you that you’d rather not have published… their right to freedom is directly protected, you know.  You would never ask the police to protect us from the press, right?

On the other hand, are you telling me that the second amendment only applies to “militias” and doesn’t make your local neighborhood gun collector free to carry around that cannon?  You read the second amendment as narrowly as possible?  That’s fine. Just don’t come back and whine about the State taking away your right to free speech… after all, the text of the bill of rights only keeps Congress from messing with your right to sing horribly in public.  Don’t even let the words “right to privacy” come out of your mouth, either. That’s a right that, although it may exist, fails to directly make it into the constitution.

I recognize that I’ve overly simplified things here, and that constitutional scholars might have decent reasons to interpret some of the rights slightly different than they do others. Maybe. I know that most people (including most lawyers) don’t, though.  Yet, everybody with a keyboard and twitter account will talk about their “right to” do something.

I’m just asking you to be consistent when you start talking about rights.  If you’re not being consistent, you’re not really talking about your rights. You’re talking about what you want your rights to be.  You’re talking about your agenda.

It’s ok to have an agenda.  Unless you’re pretending that the “rights” you speak of are anything more than your unsupported opinion, though, you’re fooling yourself (and, perhaps, whomever else you argue with).  That’s it, nothing more.

Maybe Quinn’s new laws aren’t just based on agenda. Maybe he’s one of those learned constitutional scholars and he’s got good reasons to be inconsistent.  I don’t know.  I’m just happy we can talk about a Governor who is not in prison.  Although that might change if things go bad on his Facebook page.  Then he will be in prison but I’ll finally be right about something.

I’m involved in a lot of conversations that go something like this:

Me: So, what happened?
You: I got arrested.

Me: I know. That’s why you are here.  What did you get arrested for?
You: Murder, I guess.

Me: You guess?
You: Well, I’m not guilty.

Me: Ok. What happened?
You: I don’t know. I didn’t do it. I’m not guilty!

Me: Well, after you didn’t murder that guy, then what happened?
You: I got arrested.

Me: After you got arrested, did you talk to the police?
You: Well, not really.

Me: Not really?  You don’t know if you talked to the police?
You: Well, I mean, I talked to them, but I don’t think I told them anything.

Me: Can you tell me what you told the police?
You: I don’t remember exactly.

Me: You don’t remember?  Well, if you were a betting man, what would you bet the police are going to say you told them?
You: Probably that I killed that guy.

Me: I see.  Did you give them a written confession?
You: I mean, I signed some stuff. I don’t remember what it was.

Me: Ok.  One of the things you signed… did they ask you to write down your version of what happened?
You: Yeah.

Me: Did that form already have a bunch of pre-printed writing at the top and bottom?
You: Yeah. It did.

Me: Ok, what did you write?
You: I don’t remember… I just know I didn’t do anything wrong.

Me: Did you write that on the paper… that you didn’t do anything wrong?
You: Maybe.

Me: Maybe?  If you didn’t write that, what do you think you wrote?
You: I don’t know.

Me: When I get a copy of that form, is it going to look like you wrote that you might have killed that guy?
You: Probably.

Me:  Did you put your signature on the form?
You: Yes.

Me: Ok.  Did you read any of that writing that was pre-printed on the form before you maybe wrote that you might have killed that guy?
You: No.

You know how the rest of the story goes, right?  I get that written form and it’s got a full admission.  I also get a video tape that has a full verbal, sobbing confession.  O.J. Simpson never talked to the police.  Unless you’re O.J. Simpson, you talked.  And I’ve got a client in my office who says he’s not guilty, and that he wants to take back the confessions.

THIS BREAKING NEWS JUST IN: There is no return policy on confessions.  Confessions are like kids- you make them and spend the rest of your life being responsible for them.  There are no mulligans.

Confessions don’t really ruffle my feathers much, though. I’ve see it all already.  When new clients come into my office I’m pretty much expecting that the police will say there’s some sort of confession, and I don’t worry about it.  What about the average person, though?  Like, the people who will be the jurors for your trial?

The average person can’t possibly fathom admitting to a crime they didn’t do.  Weird how that works. Why would anybody say they commit a crime if they didn’t?  So, when a newspaper says somebody confessed, things get sticky.  When the police reports show up with a written confession, it gets worse.  Prosecutors aren’t going to forget about that confession.  Just ask Gary Gauger. In fact, those prosecutors might just bring it up at your trial… in their opening, through their witnesses, and then again in their closing.

Don’t get me wrong, confessions are actually less black-and-white than you would think.  The psychology of police interrogation can lead to some pretty twisted stuff.  There is a whole industry of people who make money by showing the police how to get suspects to say the things the police want them to say.  And there are plenty of police departments trying to find the money to send their detectives for this interrogation-jedi training.

I’ve been doing this long enough and seen enough police interrogations to be skeptical whenever I hear that a defendant confessed.  When I see a press report that the police are saying a suspect “knew things only the killer would know” it makes me want to laugh.  It’s harder to be skeptical if the defendant wrote that confession with his own hand, though.  Even moreso when there is a video of him writing that confession… with audio of an accompanying oral confession.

But, if the police used all that fancy psychology to get you to confess to something you didn’t do we can get the judge to throw out your confession, right?  Maybe. Probably not.  In theory, it’s possible to “suppress” a confession.  In practice, it’s hard.  Despite what the law says, a lot of judges aren’t inclined to save you from you from yourself.  It’s not like judges have a hard time winning retention elections by denying motions to suppress, either.

Besides, you know all of that type-written language on the confession form that I mentioned above?  It says stuff like, “I’m giving this statement freely and voluntarily,” or “I’m giving this statement of my own free will, without coercion.”  See, the police have been doing this a long time.  They’ve seen how us defense attorneys work.  When we come up with a different angle or argument- like, perhaps, the psychological tactics used could cause false confessions- they respond by adding stuff to the form.  Criminal lawyers are going to argue that suspects were coerced?  Police are going to add into the form that you weren’t coerced… and you end up agreeing you weren’t confessed before I can even make the argument.

So, you’re in that tiny police interrogation room.  There are no decorations.  There are three chairs, a small table, and the room is fairly cramped.  You’re probably sitting with your back to a wall, and there are two cops in each of the other chairs.  They’ve come and left the room several times, and now they’re “giving you one last chance” to write down your version of how you didn’t kill that guy.  What should you do?

What should you do?  Hey, don’t ask me.  At this point you’ve already ignored my advice on how to deal with the police when they first confront you, you ignored the signs that you really need a lawyer, and you’re o.k. with talking to the police.  Clearly you are going to do things your own way.  Hopefully you have read this post with awesome tips for when you get arrested so the booking photo doesn’t turn out bad, though.

Until people stop talking to the police, I’ll keep dealing the hand I’m dealt and doing the best for people despite what evidence the police have.  Something tells me that the cycle won’t be broken any time soon- the police are going to do their jobs, people are going to talk, and in another month I’ll re-package the same advice (again, again, again) and post it here.

You want Jones.  He does so much more.  Not sure if he goes to Kane County, though.