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?

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 (matt@haiduklaw.com).  I think we can put together a moving, educational display.    Let me know if you would like to help.

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!

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.

http://criminaldefenseblog.blogspot.com/

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.

Dealing with the police: My three favorite things to hear.

If you are free to leave, why would you stay? I wouldn’t. Most people do.

I’ve spent the last couple of days thinking long-and-hard about the way “regular” people deal with the police. I have developed a genuine interest in figuring out why people have no problem questioning any intrusion to their lives… except when it comes to personal dealings with the police. For some reason you will go to great lengths to keep Wal-Mart out of the other side of your town but you have no problem letting the police in your car? I don’t get it. I think I’ve made it plenty clear that how you interact with the police has nothing to do with being guilty or innocent.

Perplexed as I may be, I’ve tried to figure it out. My hunch is that it has to do with the early perception children form of the police. Children are taught, rightly so, that the police help us when we need it. Approached by a stranger? Find the police. Bad car accident on the road? The police show up to help. With D.A.R.E. programs and school liaison officers becoming commonplace, it’s only natural to develop an affinity towards the helpful police. Maybe, then, people don’t want to disappoint people they see as potentially helpful to someone? I’m not sure.

Before I get any more nasty email, I’m not knocking the police. They can’t believe the things people willingly do, either. Don’t believe me? Ask a cop. The police know that most people will let them do whatever they’d like, and those police will use it to their advantage. They are the educated ones.

On that note, today I offer a little counter-education. There are three things that people hardly ever say to the police. Three powerful things. Three things rooted in the Bill of Rights. Three things that may not be specifically mentioned, but that James Madison would want you to know.

Three things you can say (that the police really don’t expect to hear):

1. “Am I free to leave?”
Without getting into a very long legal explanation, this simple question may help trigger a lot of legal issues. If you are not free to leave, your interaction with the police is not “consensual”. It may not be a full-on arrest, but it is not consensual. If you are ever unsure, ask. Don’t be surprised if you get an indirect or incomplete answer back, though. Police don’t get asked this very often, and it can actually be a difficult question to answer from their end. Also, they may be worried that you will leave. Insist on clarification, though. If you are not free to leave, you need to know.

Which brings up another question that torments me. If you are free to leave, why would you stay? I wouldn’t. Most people do.

2. “I would like to speak with an attorney before I talk to you.”  I know what you are thinking. You’re thinking, “I’m never going to get interrogated for murder, so why do I care?” Traffic court is filled with people who thought like this. In court, though, they want their day. People want trials. People don’t believe they were speeding. People know that radar is inaccurate. People aren’t buying that they were clocked at 20 MPH over the limit.

People don’t know, though, that traffic court is filled with magic. I’m not talking slight-of-hand or even Jedi mind-trick magic. I’m talking Carnac magic. Anybody sitting in traffic court for a couple of speeding trials has this magic. I have it. You can get it. It’s the magic that helps us know what the police officer says before he even says it:

Seasoned Officer: “…after the radar readout was 76 in a posted 55 MPH zone, I stopped the vehicle.”

Incredibly Skilled Prosecutor: “What happened next?

Seasoned Officer: “I approached the vehicle, asked the driver for license and insurance, and asked her if she knew why I pulled her over.”

Incredibly Skilled Prosecutor: “Then what happened?”

Seasoned Officer: “She admit that she was speeding, but said that she was only going 6 miles-per-hour over the speed limit. She said she was going with the flow of traffic, and could not have been going that fast…”

If the judge believes the driver of the vehicle actually said that, everything else at trial is a lot less important. Confessions are the most damning evidence possible. If the driver had, instead, told the officer that she didn’t want to talk about the stop without consulting an attorney first, she would have a better chance at trial. If you’re going to go to trial, why not take your best chance?

I know you think it’s nuts to say this at a traffic stop. I’m o.k. with that. They are your rights… do with them what you want.

3. No. No. Say it with me, “No!” This one can be a little bit tricky. The general rule is that you’re allowed to say “no.” You’d like to take a look around my car? No. Can you ask me a couple questions? No. You’d like to walk through my back yard? No. Can I come down to the police station to talk to you? No. Do I know where Jimmy Hoffa is buried? No, no, no!

“No” is tricky because there are some exceptions. Never use it if using it will be lying. Am I Matthew Haiduk? Saying “no” to that could get me in trouble. “No” can also be over-ridden. You might say they can’t come in, but their warrant says otherwise. What happens when a team of armed police are dressed in tactical gear, knocking on the door, telling you that they have a warrant and you tell them they can’t come in? Well, they’re about to knock down your door and hog-tie you anyway. What you say doesn’t really matter!

There is a very simple way to figure out of you can say “no.” If you are not sure whether or not you can say it, just scrap “no” off the list of things you’ll say to the police. Instead ask if you are free to leave. Then tell the police you would like to talk to your lawyer. It really is that easy.

Canadians are Bliss: Two simple rules to avoid getting arrested.

People think the law is a science. Like, there are black-and-white rules that control everything. And that every situation is repeatable. For instance, I often get asked how to avoid getting arrested for DUI. You would think the answer is simple, right? You can drink. Or, you can drive. You can’t drink and drive, though.

Unfortunately, it’s not that simple. Plenty of people who are stone-sober have been arrested. A million innocent things might cause the police to believe you are driving under the influence. Think I’m making this up? Put 5 minutes of research into the similarity between diabetic shock and DUI. Or just watch this:

 

So, I have no specifics to offer. I do have a few general rules to offer, though. They may be a bit unorthodox, but stick with me. It will all make sense in the end.

I believe in these rules 100%.

Simple Rule #1: Don’t be Canadian. This might not sound hard, but nearly 34 million people on this continent have got this one wrong. Why don’t you want to be Canadian? It’s simple, really. They don’t have a bill of rights like ours. Or, they couldn’t find their own bill of rights with a map and compass. The bill of rights is what keeps the police out of your life. In the good, old U.S. Of A we have a couple hundred years of enforcing this idea. In Canada, they still don’t know. Saying “Canadian Bill of Rights” is a lot like saying “Canadian Military” in casual conversation. It sounds like it means something, but nobody really knows what it is.

Simple Rule #2: It’s not your business. If you happen to be walking down the road one day and see the police “dealing” with somebody, it is not wise to stick your nose where it doesn’t belong. You didn’t see what happened before, you don’t know what is going on, and you don’t know where it is going. They will arrest you to get you out of the way.

That’s not to say that you should tolerate police abuse. Not at all. Sticking your nose in the middle of it is only going to get you arrested, though. You may be more effective calling the State Police (if your “interaction” is with the locals). There is also nothing wrong with video recording anything that happens in public (although you shouldn’t simultaneously record audio in Illinois). Either way, if your focus is to avoid arrest it’s best to avoid things the police are doing that aren’t your business… even if that may not be fun.

I believe in these rules 100%.  Like I said before, though, the law is not science. These two rules are good rules to live by. They may help many of you avoid arrest. There is always an exception, though…

 

.

P.S. Who is this guy to use “stranger” to describe another person?

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?

Soul Searching – Why do you let them search?

Most misdemeanor drug cases start with a traffic stop. Many felony cases do as well. It make sense that the lawman would pull over a car for a traffic offense. What doesn’t make sense (to me, anyway) is that the majority of traffic-turned-drug stops are the result of people in the car giving consent to search. I would be a very wealthy man if I had $10 for every conversation at my office that went roughly like this:

Me: Ok. Then what happened?
Accused: The officer asked if he could search.

Me: What did you tell him?
Accused: I told them he could.

Me: Why did you tell him he could search if you thought there might be contraband in the car?
Accused: I didn’t want to look guilty.

You think politely telling the police they cannot search makes you look guilty? Know what really makes you look guilty?  Standing on the side of the road in handcuffs while the police pull out 10 pounds of weed from your car.  It’s not possible to look more guilty.

The idea that people don’t want to “look” guilty is actually a bit disturbing.  Long before any of us were on this planet, the people responsible for founding our nation weighed in on searches by the government.  You know what they said about looking guilty?  Here’s what they said:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That, of course, is the text of the Fourth Amendment.  The drafters of the Bill of Rights didn’t think you would look guilty for refusing a search.  So, to whom do you think you look guilty?  The Police?  Guess what? He already thinks you’re guilty, that’s why he wants to search.

In many cases you have no ability to keep the government out of your life.  In everything from how long your lawn may be to whether you may put a boat in the water without registration, you don’t really have a “right”.  Unless there is a warrant, exigent circumstances, or some other exception, the Fourth Amendment says you do have a “right” when it comes to searches.  Americans pitched British Tea in the harbor and then fought and died for the freedom to painstakingly draft and ratify the text of the Fourth Amendment.  My experience is that people are a lot more willing to gloss that over in the face of a request from the local patrol officer.

The next part of the conversation re-enacted above has me talking to the person about their specific case, and what they should have or could have done.  I can’t give out general advice over the internet to cover each specific police interaction, so don’t even think about taking my musings here as advice for what you should do in your specific situation.  Doing so would be silly in light of the fact that I do fee consultations, anyway.  Just call me.  The best general advice I could give out is that if you ever get asked by the police if they can perform a search, it would be wise to call a lawyer for advice.  Right then and there.

I will, however, say this.  I have nothing illegal in my car.  I have nothing illegal  in my house.  Plain and simple, I have nothing illegal.  If the police ask me to search, though, my answer is “No”.  I don’t care what they think of that.

 

 

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.

 

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.