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.


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?

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.

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.