THE DEFENDANT’S DILEMMA – Fallacies of Human Behavior and Juries (Part II)

Us and them“Us, and them
And after all we’re only ordinary men…
Up and down.
But in the end it’s only round and round.
Haven’t you heard it’s a battle of words
The poster bearer cried.
Listen son, said the man with the gun
There’s room for you inside.”

– Pink Floyd ‘Us and Them’ (Dark Side of the Moon)

JURIES AND THE “US VS. THEM” MENTALITY

In many jury cases, judges and other courtroom staff take great pains to attempt to prevent any prejudice against the defendant from slipping in.  These small measures are often taken in good faith but do little to overcome basic presumptions of jurors sitting in judgment of the accused.  Defendants are often dressed in button-down shirts or suits, seated with their lawyers as if they are part of the courtroom scenery.  But from the moment the jurors “meet” the defendant, they are making constant decisions about his character, propensity for crime and whether he appears similar or different from them and their acquaintances.

Much of jury selection is based upon the admittedly inexact science of figuring out the characteristics of jurors who may be sympathetic or unsympathetic towards the accused.  Defense attorneys want their clients to give the jurors a good first impression and maintain that impression throughout the trial.  Defendants are instructed not to react to anything that happens in the courtroom and to appear respectful and remorseful.  This duality is somewhat difficult to achieve, however.  While jurors are more willing to be lenient and on the side of a Defendant who appears remorseful and freightened, truly innocent defendants may have a hard time accepting that lies are being told about them in open court, under oath, and to the jury who holds the key to their freedom.

“But if the State and police have gone through this much work to get the case put together, it’s pretty likely that they have the right person with the correct charge, right?”

Sadly, human nature shows this presumption to be wrong time and time again.  Contrary to Law and Order and the contrived, innuendo-filled press conferences of police officials and prosecutors, the main charge of the justice system is not necessarily justice – it is efficiency.


PRESUMED INNOCENT UNTIL PROVEN GUILTY?  THE “US-VERSUS-THEM” FALLACY

Illinois Pattern Jury Instruction 2.03: PRESUMPTION OF INNOCENCE – REASONABLE DOUBT – BURDEN OF PROOF GENERALLY  “The Defendant is presumed to be innocent of the charges against him.  This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in this case you are convinced beyond a reasonable doubt that he is guilty.  The State has the burden of provind the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case.  The defendant is not required to prove his innocence.”

How can this possibly work?  Can you truly reconcile this unbelievably important right with the fact that the prosecutor is accusing the defendant of heinous acts?  Attorneys are not allowed to even suggest to juries that simply because someone has been charged of a crime and has exercised their right to a jury trial that there is even a minute possibility that it is more likely than not that the accused is guilty.  But for many jurors, this is their first experience with the criminal justice system.  The very first thing that they hear, after they are picked as jurors and seated for the trial, is what a horrible, illegal, disgusting thing the defendant sitting right in front of them has done.  Next they hear the defense attorney’s opening statement, but they have already been primed to follow and understand the prosecution’s case.

Jurors are picked from the community, ostensibly.  The jury pool is often taken from the voter rolls of the county or from those who have registered for a driver’s license.  To some extent, there is a self-selection bias, however courts have somewhat wised-up to the excuses that people use to get out of jury duty.  Sadly, every juror who thinks that he or she can game the system and get kicked off of the jury panel, or that it is below him or her to sit on a jury would have an absolutely different opinion if the roles were reversed.  The public is not conditioned to think, “What if it was my family member who was accused of a crime??  What if it was me??”  We have created a criminal justice system with a very strong “Us-Versus-Them” mentality.  To some jurors, jury duty is a mere inconvenience to their otherwise important life.  Those in the “Us” category have better things to do.  Companies need to be run, emails returned, and the world needs them to keep it from falling off of its axis.  Very few jurors are willing to identify with the “Them” category.  In a juror’s mind, “they” are defendants.  This is not a racial or cultural issue necessarily, but it cuts along racial and class lines.  This mentality may not be intentional, but it is detrimental to defendants who are merely asking other citizens to take a short amount of time out of their lives to uphold the Constitution and give them a fair trial.  How can jurors living in the “Us” mentality not identify with the victims of a crime??  After all, “they” are the ones victimizing “us” with their criminal behavior.  “They” are the defendants in these cases not because of some deeply-rooted societal issues, but because “they” are different from “us.”  This classist mentality creeps into anyone who sits in judgment of others.  Jurors who have experienced problems with police and the criminal justice system are better able to see the problems inherent in the system and in jury cases, but jurors work as groups – and think as groups.


DEFENDANT’S TESTIMONY: A DANGEROUS SLIPPERLY SLOPE

Defense opening arguments are a relatively decent way to endear yourself to jurors, but at best they make suggestions and requests of the jury to see the holes in the case – to look further into the testimony than their prosecutorial counterpart would have them do.  No case is ever as cut-and-dried as it seems when the prosecutor is standing accusing the defendant of doing something which disrupted society, possibly hurt someone, or did something else to offend legal sensibilities.

WHY DON’T JURIES GET TO HEAR ANY INFORMATION ABOUT THE DEFENDANT?  IS IT REALLY FOR THE DEFENDANT’S PROTECTION?  Throughout the testimony of prosecution and defense witnesses, the character of the defendant is absolutely a prohibited topic in most criminal trials.  The reason: Courts say they don’t want jurors making decisions based upon emotion, their views of the defendant, or other information which is not admitted formally into evidence.  Ironically, much of trial strategy is not simply focused on the facts of the case, but on how the jury will view the defendant and witnesses.  One interesting example which comes to mind is the littany of rules about the defendant’s choice whether to testify.  Jury instructions are explicitely clear that a defendant has absolutely no duty to prove his innocence or answer for any of his alleged actions as charged by the State.

One of the principles that some courts apply is prohibiting trials from devolving into a personal attack on the defendant instead of an unbiased examination of the testimony.  Problems with testimony and witnesses are so numerous that I can’t even begin to address them now, however court rules and case law generally prohibits prosecutors from referring to prior bad acts of the defendant, personal affiliations, possible gang ties, and other things which may bias the jury against the defendant.  This also, however, prevents the defense from presenting character information about the defendant – except in specific instances which aren’t always clear to those with law degrees.

“IF THE DEFENDANT IS INNOCENT, WHY WOULDN’T HE TESTIFY??”

Illinois Pattern Jury Instruction 2.04:  “The fact that the defendant did not testify must not be considered by you in any way in arriving at your verdict.”

IF A DEFENDANT TESTIFIES…Many things can happen.  First and foremost, the Defendant’s prior criminal background can be brought in to impeach him – or destroy his credibility.  Jurors will hear if he has been convicted of any felonies within 10 years and what those felonies were.  The theory being that someone who has been convicted of a felony is more likely to lie on the stand than one of “us” – the non-felons.  This weighs hugely on a defense counsel’s decision to advise the defendant to testify – a choice which ultimately lies with the defendant.  But few attorneys are going to willingly put their client on the stand only to have whatever he says overshadowed by the fact that he has prior convictions or, even worse, convictions for similar offenses to the one for which he is standing trial.

BUT JURIES WANT TO KNOW THE DEFENDANT’S STORY!  This often plays itself out in police stations and squad cars when someone is first arrested.  Regardless of their guilt or level of culpability, it is natural behavior to want to explain your side of the story.  We want to set the record straight.  The fact that the police tell defendants that “Anything they say can and will be used against them in court” is often taken for granted and greatly misunderstood.  For arrestees, it is easy to believe that you can talk your way out of trouble.  Unfortunately, every word you utter is going to be scrutinized up until the moment when the jury renders a verdict, and every time a defendant talks, a new can of worms is opened up.  Yes, juries are not allowed to use the defendant’s silence or choice not to testify (formerly known as his “failure to tesify” until the courts wised up, at least in Illinois) against him.  How is this possible??  There is no good balance.  Even when a defendant does take the stand and is believable in his testimony, the prosecution will attack that defendant with all of the visciousness that the might of the State allows.  A defendant telling the “whole truth” may sound like he is equivocating or forgetting important details when matched against a seasoned trial attorney.  Defendants, like all witnesses, are subject to the same psychological issues – fading memory over time, the power of suggestion by attorneys and the pressure of testifying.  Attorneys must constantly decide if the potential benefits outweigh the costs.  Most of the time, putting a defendant on the stand is far riskier than allowing the jury to guess why he isn’t testifying.  And often, nobody wins and the truth never wins out…

Like it or not, the criminal justice system in the United States is broken.  It is not the best one out there, and it is far from the best one we can come up with.  Entrenched ideology about how justice should be disseminated is slow to change.  Some of the most serious changes come only with generational change and replacement of the old guard with fresh minds willing to take action to fight the system instead of just surviving it.

THE TAKEAWAY FOR TRIAL ATTORNEYS:  AS A DEFENDANT (AND BY PROXY, A DEFENSE ATTORNEY), YOU ARE DAMNED IF YOU DO AND DAMNED IF YOU DON’T.  THE “PRESUMPTION OF INNOCENCE” YOU ENJOY AT THE BEGINNING OF A CASE COMES IMMEDIATELY UNDER ATTACK WHEN THE JURORS SEE YOU AS BEING ON THE OTHER SIDE OF SOCIETY- AS BELONGING TO “THEM” INSTEAD OF “US.”  ASKING  CITIZENS TO SIT IN JUDGMENT OF OTHERS IS AN IMPORTANT PART OF OUR LEGAL SYSTEM, BUT THE JURY SYSTEM PROBLEMATICALLY ASKS THAT PEOPLE IGNORE INSTINCTUAL, OFTEN SUBCONSCIOUS AND LITTLE-UNDERSTOOD BIASES WHICH HAVE HUGE AND LONG-TERM EFFECTS ON THE JUDGED.

United State’s Constitution: Amendment VI – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State [ ] and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

 All views are that of Jonathan S. Goldman and do not represent those of the Law Office of Jonathan S. Goldman, its affiliates or partners.  Jonathan Goldman is a criminal defense attorney in Chicago and works with those convicted of crimes in the past to clear their criminal records through expungement, sealing and executive clemency.  See www.AffordableDefenseLaw.com for more information.

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APPELLATE COURT REVERSES FOR LACK OF EVIDENCE

CHICAGO, ILLINOIS (2016) – I was checking up on the status of former client’s appeal when I stumbled upon a gem I would never, ever have expected but which had been a long time coming.

I defended a gentleman, whose name has been changed, in a felony possession of controlled substance with intent to deliver jury trial at the Cook County Courthouse at 2600 S. California. With little hesitation, the jury found him guilty of the charges and he was sentenced accordingly as class X by background (a 6-30 year range).

I was fortunate enough to be able to speak to the jurors as they got their bags and were forced to walk past me to leave, and more than one of them pointed to a glaring hole in the law which convinced them to convict. They said that they didn’t think that my client was the only person in the house who should have been convicted, but that more people in the house should have been convicted. They only convicted my client because he was the only one on trial.

Astounded, I did my motion for new trial and set up an appeal. The State Appellate Defender ran with the record I had so carefully protected in anticipation of an appeal and on a muggy day in the Summer of 2016, I noticed that the appeal had been returned – THE CASE REVERSED FOR LACK OF EVIDENCE. Not even remanded for a new trial, but reversed. Dismissed. Not guilty. The names have been changed for confidentiality’s sake, however this is all public record. I will not add any comments which are not included in the record.

I would be remiss not to toot my own horn a bit. All of the points found by the appellate court are line by line what I argued at trial and in my motion for a new trial. Everything came together just right and I am thankful for the confluence of good circumstances and people.

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Justice ScrabbleTake a look at the appellate case below and at my first macro sense that there might be a modicum of fairness in the system. I’m sure I was quickly beaten back down to size by the day-to-day realities of criminal defense, but this one lifted my spirits a bit. Someone made the right decision. Any lawyer will agree that truth, if it is ever gleaned, comes at a price. In this case, the damage done to the defendant’s family and time spend in prison wrongfully convicted is a steep price to pay, but one which has not left him debilitated.

AND SO I PRESENT:   THE APPEAL.

Names and identifying information of defendant and witnesses have been changed to protect confidentiality.


2015 IL App (1st) 123456-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.

JOHN DEFENDANT, Defendant-Appellant.

No. 1-13-123456

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DIVISION

August 10, 2015

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

No. 11 CR 9876

Honorable Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Justices Cunningham and Connors concurred in the judgment.

ORDER

Held: We reverse defendant’s conviction for possession of cocaine with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2010)) where the State failed to present sufficient evidence showing that defendant knowingly possessed the cocaine.

¶ 1 On May 28, 2011, the police executed a search warrant for defendant, John Defendant, at his girlfriend’s house in Chicago, Illinois. Chicago police officers testified that they found 19.1 grams of cocaine, over $1,000 in currency, and a scale in an upstairs bedroom where they found

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defendant sleeping with his girlfriend. The police further testified that they found the cocaine, in plain view, on top of a dresser that had been placed in a closet in the bedroom. The doors to the closet, however, were open. While speaking to one of the police officers during the search, defendant referred to the room he was found sleeping in as his bedroom. Defendant maintains that, at most, he was an overnight guest at the home.

¶ 2 After a trial, a jury found defendant guilty of possession of a controlled substance with intent to deliver. 720 ILCS 570/401(a)(2)(A) (West 2010). The circuit court sentenced him to eight years’ imprisonment. Before this court, defendant challenges the sufficiency of the evidence and argues that the State failed to prove beyond a reasonable doubt that he knew about, or had control over, the cocaine found by the police. We hold that the State failed to present sufficient evidence showing that defendant knowingly possessed the cocaine seized by the police. Therefore, defendant’s conviction must be reversed.

¶ 3 JURISDICTION¶ 4 The circuit court sentenced defendant on July 19, 2013. Defendant timely filed his notice of appeal on that same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶ 5 BACKGROUND¶ 6 The State charged defendant by information with one count of possession with intent to deliver in connection with his May 28, 2011, arrest where the police found 19.1 grams of cocaine in a bedroom where he had been sleeping. 720 ILCS 570/401(a)(2)(A) (West 2010).

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¶ 7 At trial, Chicago police officer Larry Rattler testified he was part of a law enforcement team that executed a search warrant that named defendant as its target. The police executed the warrant a little before 8 a.m. at a single family home located at 6045 S. Warrant Avenue in Chicago, Illinois. The police found defendant asleep, with his girlfriend, in an upstairs bedroom. Besides defendant and his girlfriend, the police found three other people in the house. Officer Rattler searched the room where defendant was found, and testified that the room had a mattress on the floor, clothes were “scattered around a little bit,” there was a television, and pieces of furniture. He proceeded to search the bedroom and found, “on top of a dresser *** in a basket,” one plastic bag containing cocaine. Officer Rattler testified that both the dresser and the basket on top of it were visible in his plain view. He further testified that he was able to see the plastic bag of cocaine immediately upon looking into the basket. The cocaine was broken up into multiple pieces. Officer Rattler also found $1,046 in U.S. currency “on the side of the bed next to the mattress,” and $201 on the nightstand. Rattler testified that, based on his years of experience, that the cocaine found “appeared to be ready to be sold at street level.” Later, on redirect examination, Officer Rattler stressed that the dresser from which he recovered the drugs was not behind any sort of closed door and it was in plain view.

¶ 8 On cross-examination, Officer Rattler testified that defendant was not combative, and he described defendant’s mood as “compliant.” Brenda Homeowner owned the home, and Officer Rattler did not find any mail addressed to defendant or any other documents indicating defendant resided at the home. When asked whether he found any men’s clothing in the bedroom, Officer Rattler could only state that one pair of men’s boots were found. Officer Rattler offered the following description of the bedroom: “it wasn’t a big room, it was a room with open space and a closet, that was it.” He could not recall if the closet in the bedroom was a walk-in closet, but

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noted that it was large enough to fit a dresser. He agreed that the dresser was in the closet and that the suspect cocaine was enclosed in one plastic bag as opposed to individual packages. Officer Rattler testified that the basket, which contained the cocaine, was not within reaching distance of where defendant slept. He did not find any razor blades in the bedroom. Officer Rattler admitted that the bundle of currency totaling $201 found in the bedroom nightstand was contained in a tube labeled ” ‘ Property of B.’ ” Officer Rattler testified that there was another individual in the bedroom, but he did not know if it was her room.

¶ 9 Chicago police officer Brian Gunnell testified that he was part of the team executing the search warrant. He was the first person in the door and immediately went upstairs where he saw defendant and a female sleeping in the bed of a bedroom. Officer Gunnell described the room in which he found defendant in as “a bedroom with a flat screen style TV, bed, couple of – a nightstand or two. And if you look directly laying in the bed there was like a closet style door, like an accordion style door that was pushed open.” The accordion style door was open and Officer Gunnell was able to see inside of the closet. He observed a large pair of “Timberland style boots” at the foot of the bed. Officer Gunnell testified that defendant was either asleep or acting as if he was asleep when he first entered. When asked if he found anything indicative of narcotics sales, Officer Gunnell testified that he found a digital scale with residue on it behind the television. Officer Gunnell observed Officer Rattler recover a large knotted plastic bag containing crack cocaine. When asked where Officer Rattler found the bundles of currency, Officer Gunnell testified that “[o]ne was on a nightstand and the other one I think was on the floor on the side of the bed.” He later saw defendant wearing the Timberland boots.

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¶ 10 On cross-examination, Officer Gunnell testified that in addition to the bedroom, in which he found defendant, there was another bedroom upstairs and a room used for storage or office space. Officer Gunnell did not find any mail or paperwork displaying defendant’s address.

¶ 11 Cathy Regan, a forensic scientist with the Illinois State Police and an expert in forensic chemistry, testified that the substance recovered from the bedroom was indeed cocaine. She testified that that the cocaine weighed 19.119 grams.

¶ 12 Sergeant Alonzo Harris of the Chicago police department testified he supervised the team who executed the search warrant. When the residence and its occupants were secure, Sergeant Harris spoke to the occupants and explained to them why they were there, as well as who and what they were looking for. After Sergeant Harris told the occupants that they were looking for defendant, defendant asked to speak with Sergeant Harris. Sergeant Harris agreed and took defendant away from the other occupants and into the kitchen area. Sergeant Harris testified that defendant told him that he “picked the wrong day” and that “upstairs in his room there was about an ounce of weed behind the television.” Sergeant Harris testified that defendant told him that his room was the room where he was found sleeping. At that time, defendant did not know if the other police officers had found any contraband. On cross-examination, Sergeant Harris clarified that defendant called the bedroom ” ‘my bedroom.’ ” Despite defendant’s conversation with Sergeant Harris, no cannabis was found in the residence.

¶ 13 The State successfully introduced into evidence several pictures of the room where the police found defendant sleeping. At the close of the State’s case-in-chief, defendant motioned for a directed verdict, which the circuit court denied.

¶ 14 Brenda Homeowner, the owner of the residence, testified on defendant’s behalf. Homeowner testified that her daughter, Becky, and a friend of hers, Wendy, live in the house with her. She

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described the upstairs of the home as having a bathroom, Becky’s bedroom, a small closet to the left of Belisha’s bedroom, her own bedroom, and a small office. On the day of the search, Becky’s friend, Chelsea, and Chelsea’s daughter, were also staying at the house. Becky and defendant were dating, and Homeowner testified that defendant stayed “[o]vernight maybe once in awhile.” She later estimated that he stayed “[m]aybe once a month.” Defendant did not live at the house, and he did not pay any of the bills related to the house, receive mail at the home, keep any of his property at the home, or have a key to the house. Homeowner thought defendant had an apartment. She agreed that she generally had a good knowledge of what was going on in her house and that she was generally home at night. Homeowner described her daughter Becky’s bedroom, where defendant stayed, as having a door with a lock. Later, on redirect examination, Homeowner testified that Becky “was working at a – she was in between jobs at that time. I believe she was working in the bar, bartender.” Homeowner testified further that Becky would come home with “tips from the bar.”

¶ 15 On cross-examination, when asked whether defendant “might have brought something into that house,” she answered “[i]t’s possible. I don’t know what he did.” She did not inspect his belongings when he entered. She also did not know what he did when he was in the upstairs bedroom. She thought defendant had been dating her daughter about a year and a half. When defendant came over, he always slept in Becky’s bedroom. She testified that neither she nor her daughter sell drugs.

¶ 16 The circuit court denied defendant’s motion for a new trial and for reconsideration of the circuit court’s decision to deny his motion for a directed verdict of not guilty. The circuit court subsequently sentenced defendant to eight years’ imprisonment. Defendant filed a motion

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asking the circuit court to reconsider its sentencing decision, which the circuit court denied. Defendant timely appealed.

¶ 17 ANALYSIS¶ 18 Defendant argues that his conviction should be reversed because the State failed to prove beyond a reasonable doubt that he knew of, or had control over, the cocaine the police found on the premises. Defendant points out that the State failed to present evidence showing that he was anything more than an occasional visitor to the residence, and that the evidence showed that the money found in the bedroom belonged to Becky. Accordingly, defendant contends that the State failed to put forth sufficient evidence showing his knowledge or control of the cocaine.

¶ 19 In response, the State maintains that it proved beyond a reasonable doubt that defendant constructively possessed 19.1 grams of cocaine. The State argues that the police recovered, in plain view, cocaine and a substantial amount of money near where defendant slept the night before. The State further points out that defendant referred to the room as his bedroom and that the police found a scale in the room.

¶ 20 The due process clause of the fourteenth amendment to the United States Constitution ensures that an accused defendant is not convicted of a crime “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970); People v. Carpenter, 228 Ill. 2d 250, 264 (2008); see alsoPeople v. Ehlert, 211 Ill. 2d 192, 213 (2004) (“Simply stated, the fact that defendant is ‘probably guilty’ does not equate with guilt beyond a reasonable doubt.”). Although a defendant’s guilt must be proven beyond a reasonable doubt, inferences flowing from the evidence should not be disregarded. People v. Schmalz, 194 Ill. D 75, 81 (2000). In fact, all reasonable inferences from the record must be allowed in the prosecution’s favor. People v. Givens, 237 Ill. 2d 311,

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334 (2010). Therefore, when reviewing a challenge to the sufficiency of the evidence in a criminal conviction, we consider the evidence in the light most favorable to the State and “determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime.” People v. Brown, 2013 IL 114196, ¶ 48.

¶ 21 It is not the role of this court to retry a defendant upon appellate review. Givens, 237 Ill. 2d at 334. We must keep in mind that credibility issues, the weighing of the evidence, resolving conflicting or inconsistent evidence, as well as making reasonable inferences from the evidence, are all functions reserved for the trier of fact. Brown, 2013 IL 114196, ¶ 48; People v.Jimerson, 127 Ill. 2d 12, 43 (1989); People v. Frieberg, 147 Ill. 2d 326, 360 (1992). Deference is given to the trier of fact because it saw and heard the witnesses. People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007). Furthermore, circumstantial evidence alone can support a criminal conviction. Brown, 2013 IL 114196, ¶ 49. Although our review is deferential, a trier of fact’s determinations are not conclusive. Id. ¶ 48. Where the evidence is so unsatisfactory, unreasonable, or improbable to justify a reasonable doubt as to defendant’s guilt, a reviewing court will reverse a criminal conviction. Id.

¶ 22 In order to convict defendant of unlawful possession of cocaine with intent to deliver, the State must show that the defendant had knowledge of the possession of the unlawful substance and that the substance was in the defendant’s immediate and exclusive control. Frieberg, 147 Ill. 2d at 360. Although control of the premises is not a prerequisite to a conviction, proof of a defendant’s control over premises where illicit substances were found gives rise to an inference of knowledge and possession of the drugs. Givens, 237 Ill. 2d at 335. The element of possession can be either actual or constructive. Givens, 237 Ill. 2d at 335. Actual possession does not require present personal touching of the illegal substance. Id.

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Rather, “[a]ctual possession is the exercise by the defendant of present personal dominion over the illicit material and exists when a person exercises immediate and exclusive dominion or control over the illicit material.” Id. Constructive possession exists where a defendant, despite the absence of actual personal present dominion, had the intent and capability to maintain control and dominion over the substance. Frieberg, 147 Ill. 2d at 361. Exclusive possession, however, does not mean that possession cannot be shared amongst multiple people. Givens, 237 Ill. 2d at 335. Two or more people can be found to have joint possession where they either share exclusive and immediate control or share the intention and power to exercise control.Schmalz, 194 Ill. 2d at 82. The factual questions of knowledge and possession or control are to be determined by the trier of fact. Schmalz, 194 Ill. 2d at 81.

¶ 23 After viewing the evidence in the light most favorable to the State, we hold that the State failed to satisfy its burden of proving defendant guilty beyond a reasonable doubt because it did not prove that defendant knowingly possessed the cocaine and that the cocaine was in his immediate and exclusive control. It is clear that defendant did not actually possess the cocaine at issue, and the State does not argue defendant actually possessed the cocaine. We also cannot, however, say that the State’s evidence shows that defendant had the intent or capability to maintain control over the substance to establish constructive possession. Frieberg, 147 Ill. 2d at 361. The evidence at trial showed that the police went to defense witness Brenda Homeowner’s house to execute a search warrant naming defendant as its target. Upon entering an upstairs bedroom, the police discovered defendant and his girlfriend in bed together. The mattress was on the floor. The police found the cocaine in a basket on top of a dresser that had been placed in a closet. The doors to the closet had been left open. Notably, Officer Rattler testified that the basket containing the cocaine was not within reaching distance of where defendant slept.

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The above evidence does not show that defendant actually or constructively possessed the cocaine found in the bedroom. Rather it shows that defendant was found sleeping on a mattress on the floor while the cocaine was found, outside of his reach, on top of a dresser. The dresser, in turn, was inside of a closet. Accordingly, the State failed to present sufficient evidence showing defendant’s possession of the cocaine at issue in this case.

¶ 24 We are also of the opinion that the State failed to present sufficient evidence showing that defendant controlled the room where he was found, which, if shown, would support an inference of knowledge and possession. Givens, 237 Ill. 2d at 335. It is clear from the evidence that defendant was an overnight guest of Becky, Brenda Homeowner’s daughter. The only evidence the State presented showing that defendant controlled the room where the drugs were found was the evidence that defendant’s boots were found at the foot of the bed and that defendant told Sergeant Harris that marijuana was in the room where the police found him. We do not think, however, that this evidence is sufficient to support a finding that defendant controlled the room where he was found. It is reasonable for defendant, as an overnight guest, to take his boots off before going to sleep. Officer Gunnell testified that he later saw defendant wearing the boots, which shows that the boots were not an extra pair he stored in the room. Defendant’s comments to Sergeant Harris that marijuana was in his room may give rise to an inference that defendant possessed marijuana, but it does not indicate that he possessed the cocaine at issue in this case. Furthermore, it is reasonable for defendant to refer to the room where he slept overnight as his, despite his apparent lack of control over it. Regardless of defendant’s comments to Sergeant Harris, the location of the cocaine, i.e., outside of defendant’s reach, justifies a reasonable doubt as to defendant’s guilt.

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¶ 25 Accordingly, the State failed to show that defendant knowingly possessed the cocaine recovered from the bedroom in this case. The State’s evidence is not sufficient to sustain defendant’s conviction because it justifies a reasonable doubt as to defendant’s guilt. Therefore, we must reverse defendant’s conviction.

¶ 26 CONCLUSION¶ 27 The judgment of the circuit court of Cook County is reversed.

¶ 28 Reversed.


REVERSED,” is one of those words that only seemed to matter during law school exams. This time, however, it mattered more than any other word in the English language. I know it mattered to the defendant.

CASE CLOSED.

Jonathan

Jonathan S. Goldman is a felony criminal defense attorney currently working with a medium-sized Chicago firm on their criminal defense team. He has been practicing criminal defense throughout his entire career and devotes his professional career to criminal trial litigaiton. He is a graduate of DePaul Law School (J.D. ’07) and the University of Wisconsin-Madison (B.A. ’03).

 

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ONLY 5 MONTHS TO GET RID OF ANITA ALVAREZ AS STATE’S ATTORNEY!

CHICAGO, ILLINOIS – VOTE NO ON ANITA ALVAREZ’S REELECTION IN MARCH!

In an amazing 8 years, Anita Alvarez has single handedly done more to make Chicago unsafe, segregated, and to ensure that the poor suffer disproportionately than most politicians could do in a lifetime.  Her unchecked power grabs and edicts are blindly followed by cronies and hard-working subordinates alike, creating a culture of fear for defendants in Cook County courtrooms – from the guilty to the innocent alike.  Sadly, in Alvarez’s narrative, the difference between the two is negligible at most and non-existent in the most freightening circumstances.  In the end, our streets are no safer. Our drug addicts are no less likely to overdose or get arrested for small amounts of drugs, and our truly dangerous violent criminals are no more likely to be properly house or, gasp, treated by mental health professionals. Few inmates leave jail or prison better equipped to live and function in society than prior to their incarceration, as our parole (MSR) system has shown.

THE WHEELS OF JUSTICE BARELY TURN, AND WHEN THEY DO THEY LEAVE DESTRUCTION IN THEIR WAKE THAT IS LITTLE IF AT ALL BETTER THAN BEFORE THE SYSTEM BECAME INVOLVED.

Alvarez watching over her precious Alvarez watching over her precious “War on Drugs”.

“Tough on Crime” – I loathe this phrase.  Of course every politician wants to be labeled “tough on crime,” or at least not labeled soft on the issue.  Alvarez creates a systematic toughness on all who are arrested under her watch by ensuring her assistants in the courtrooms doing her bidding every day have no discretion and work in a culture of fear every day.
There was a time when common sense was allowed to come into play in charging and negotiations (which Alvarez doesn’t actually participate in, despite the article’s slightly misleading information).

There are excellent assistant states attorneys in the courtroom every day who would fit Alvarez’s office far better and leave the lock-em-up first, war on drugs mentality behind.

If nothing else vote against her because you could be the next victim of her administration and have your life turned upside down forever on a trumped up charge because it’s politically beneficial to Anita.
This coming March, it’s time for her to go.  Beginning below are the underpininngs of the reasons and facts presented by journalists and researchers on why her old-school stance on incarceration (which can be changed only by a court order or political pressure, not logic) has no place in 2015 – the biggest complaints coming from low-level drug and cannabis offenders and their attorneys who were told that treatment would overshadow mass incarceration.

Chicago Reader reporter Mick Dumke delves into the reign of Anita Alvarez – CLICK FOR THE STORY

Dumke does a far more detailed and better job explaining why the detractors and critics of Alvarez have legitemate concerns about her office’s brazen indifference to statistical proof of what works in large-county prosecution.  He is absolutely fair in pointing out her strong-suits, but the mantra of her office gets old.  Her supporters are loyal but they still tow the party line.  In reality, you can’t simply treat every case the same and expect your results to differ from every other agency who took the same tact.

As a seasoned criminal defense attorney who started at the tail end of Dick Divine’s tenure as State’s Attorney and has existed almost solely under the reign of Anita Alvarez, I have personally witnessed changes in the system – subtle and overbearing – which have steered us in a direction so far away from a search for truth that claims to a search for justice are almost farcical.  She is essentially a supporter of Nancy Reagan’s “War on Drugs,” but claims the priority of her office is not to lock up low-level cannabis or drug offenders.  Her office policy, however, is backed up only by rhetoric and a few dollars here and there about treatment for drug offenders.

One of the big issues we face as defense attorneys, the ones who actually work with those with drug problems, is that there are never enough spots or beds in drug treatment programs.  I have seen clients wait for periods of time essentially as long as their maximum sentence to get a bed in the Westcare or other drug treatment divisions of the jail.  Those are only the clients who ask for drug treatment too.  The defendants who either refuse to admit they have a drug problem after multiple arrests for small amounts of drugs are not the ones clamoring for a bed in a treatment unit or a spot in the coveted Drug Court – an intensively monitored alternative to traditional prosecution where judges who truly care about the issue of drug addiction try their best with the resources allocated to treat drug addicts or at least supervise and drug test them.  It’s a noble cause but one that is, alas, underfunded.

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This is not the time for Cook County residents to roll over and stick to the status quo.  We have had 8 years of Anita Alvarez destroying the morale of the State’s Attorney’s office – forcing talented prosecutors to fear that every decision they make could be their last as an Assistant State’s Attorney, and creating a rubric of acceptable behaviors which force the ASAs and the courts to steer as far away from the truth that the prosecutors are sworn to protect and towards the “convict at all costs with the harshest penalties” mentality that destroys any well-meaning prosecutor or prosecutor with a conscience that gives them pause, if only for a second before they realize that they need their jobs to support themselves and their families, when they are overcharging cases where few would object to reductions in charges or dismissals.  I know plenty of prosecutors who are not only good people with good consciences, but who joined the prosecutor’s office for the specific purpose of doing good and making sure the truly dangerous are jailed and those who can be helped get helped.   After a few years under Alvarez, I question if they really believe what they claim in court.  Some true believers are inevitable, but I can’t imagine forcing intelligent, well-meaning people who have dedicated their lives to the pursuit of justice to follow a non-sensical, draconian system of rules which have no place in real life is to anyone’s benefit.

I’ve said it before, but anyone who claims that “this is the best system we have” or more ominously, “the best system we could put together” is either so out-of touch with reality or so concerned about avoiding change that they are dangerous to the real goals of our justice system.

Anita Alvarez has never apologized for anything her office has done, and maybe she shouldn’t.  Perhaps she truly believes that what she is doing is making the city better…But the city certainly hasn’t reached any semblance of a reasonable level of safety, even with small decreases in certain crimes.  If she really believes that she is helping, than she is beyond help.  She is wrong in the way she runs her office and has run her course in Cook County.  Politics be damned.  People’s lives are at stake, and Alvarez never offers the right solutions.

VOTE AGAINST ANITA ALVAREZ IN THE MARCH, 2016 ELECTION.  NOW IS OUR TIME!

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-Attorney Jonathan Goldman is a criminal defense attorney in Chicago and throughout Cook County.  He also focuses on expungement, sealing and helping people clear up their old criminal records.  All posts are the sole opinion of Jonathan Goldman and do not reflect the positions or opinions of the Law Office of Jonathan S. Goldman or affiliates.  For more information, go to www.AffordableDefenseLaw.com

Cook County Sheriff Tom Dart Addresses Unjust Incarceration in Jails

FROM COOK COUNTY SHERIFF TOM DART:

tomdart microphonesA Note on Unjust Incarceration

“Our nation’s jails hold more than 731,000 people on any given day. More than 8,800 are right here in Cook County Jail – the largest single site jail in the United States.

With over five million people, Cook County is the America’s second most populous county. Everything we do – both correctly and incorrectly – serves as an example for the rest of the nation. Unfortunately, for far too long we have been demonstrating many of the things that are wrong with the criminal justice system.

For most, jails are out of sight, out of mind – places where dangerous people are locked up and kept away from society. While jails certainly house many horrifically violent offenders who belong behind bars, that is only part of the story. Jails – including Cook County Jail – have increasingly emerged as dumping grounds for the poor, desperate and mentally ill. Crimes such as breaking into an abandoned home to sleep, stealing candy bars to subdue hunger, buying drugs to self-medicate for mental illness – these are acts that reflect the need for help, not incarceration.

There has been recent national momentum to finally address mass (or unjust) incarceration. This is long overdue. Yet we cannot solve the problem before we fully understand the problem. And we cannot understand the problem until we fully comprehend who is in custody and why.

Over the coming weeks, I’ll be adding public information here about the cases and faces we see every day in order to bring our broken system into focus. These are people who have a record of cycling through the jail, often on misdemeanor charges that add up to months behind bars and tens of thousands of dollars in bills to taxpayers. Know that for every person featured here, there are scores more just like them hidden behind the high walls of this jail – people that repeatedly slip through our society’s threadbare safety net into prison cells. We house hundreds of people committing such ‘crimes of survival’ every day and we should be thinking about what we can do to help them and break the outrageously expensive cycle instead of perpetuating it: arrest, charge, incarcerate – and repeat.

Imagine what it must be like to be stuck within the revolving door of a criminal justice system that is often broken and unflinching. And consider joining me in my fight for a more thoughtful approach to criminal justice.

With your help and advocacy, we can truly effect change and break the cycle.”

-Sheriff Thomas J. Dart

http://www.cookcountysheriff.org/UnjustIncarceration/CaseStudyMain.html

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CASE STUDIES CITED BY SHERIFF DART OF UNJUST INCARCERATIONS IN THE COOK COUNTY DEPARTMENT OF CORRECTIONS (JAIL) AND ILLINOIS DEPARTMENT OF CORRECTIONS (PRISONS):


CASE STUDY – M.H.

Charge: Theft of 2 plums and 3 candy bars

Days in Jail: 135

Cost to taxpayers: $19,305

M.H., who is 30-years-old, was most recently brought into the Cook County Jail in July, homeless and pregnant, after being arrested on charges that she allegedly stole two plums and three chocolate bars from a Save-a-Lot.

The police report for that arrest gives M.H.’s motive: “She took the food because she is pregnant, and she was hungry.”

She was on probation at the time for a similar retail theft conviction from April 2014. In that case, she was arrested for attempting to steal $30 worth of cosmetics from CVS. She spent 27 days in jail before being released on probation, costing taxpayers more than $3,500.

The new Save-a-Lot retail theft charge was eventually dropped but a Violation of Probation charge was added. She was released on an I-Bond and was ordered to appear in court two days later for the Violation of Probation. When she did not appear in court, a warrant was issued for her arrest. In August 2014, police were called when M.H. refused to pay a CTA bus fare. A name search revealed the active warrant, and she was booked back into the jail

This fall, while in custody, M.H. delivered her baby girl. Following a brief hospitalization, M.H. was returned to the jail and her newborn was placed in foster care.

On Jan. 7, 2015, M.H. was sentenced to IDOC for the first time for the theft charge in the case of the cosmetics worth $30. She had spent 135 days in jail custody before being sentenced to prison. She was released on parole on Feb. 20. She spent a little more than a month in IDOC.

M.H. was homeless and 6 months pregnant at the time of this July arrest. On November 11th, Veterans Day, she delivered her baby in the Cook County Jail and named her Miracle. Following a brief hospitalization, M.H. was returned to the jail and Miracle was placed in foster care.

In all, M.H. has been booked into the Cook County Jail five times on 14 arrests, nearly all of them for similar crimes of survival. M.H.’s 167 days in Cook County Jail over the last year for retail theft-related charges has cost taxpayers at least $23,000 and that doesn’t include extra medical and court expenses.

Of her 14 arrests, nine resulted in court action/custodial time. Between July 1, 2013 and Aug. 20, 2014, M.H. spent a total of 221 days in Cook County Jail at a housing cost of more than $50,000.


CASE STUDY – W.M.

Charge: Theft of 8 packs of Snickers bars and
a pair of scissors

Days in Jail: 114

Cost to taxpayers: $16,302

  • In the past 15 years, W.M., who is 57-years-old, has been arrested 61 times. His history includes:
    • 19 bookings into Cook County Jail
    • 7 admissions to the Illinois Department of Corrections
      • 6 of his IDOC admissions are for Retail Theft.
  • His 19 bookings into CCDOC total 1,117 days spent in jail at a collective housing cost of about $159,731. His cases have been resolved with a variety of outcomes:
    • IDOC – 7
    • Sentence Completed – 4
    • Stricken with Leave to Reinstate – 2
    • Dropped – 2
    • Probation – 3
    • Time Considered Served – 1
    • Drug Treatment – 1
  • W.M.’s most recent arrest occurred on Sept. 29, 2014, for attempting to steal eight packs of Snickers bars and a pair of scissors. He was observed by the CVS Loss Prevention Agent wrapping the packs of candy bars around his legs with shoestrings and covering them with his pant leg. He spent 114 days in CCDOC on this case before being released to Gateway drug treatment.
  • At the time of the September arrest, W.M. was on parole for a retail theft conviction that occurred in June 2012. He will be released from parole on March 2, 2015. IDOC was notified of the violation and did not issue a warrant for him.
  • The large majority of W.M.’s 61 arrests are for attempting to steal various amounts of candy from large chain retailers. According to the arrests reports, W.M. states that he is stealing them because he is Diabetic.
  • His retail theft charges continue to be upgraded to Class 4 Felonies because of his history.

CASE STUDY – S.B.

Charge: Retail Theft of meat from Jewel

Days in Jail: 174

Cost to taxpayers: $24,882

  • 34 arrests total – 13 bookings into Cook County Jail – 11 Admissions to the Illinois Department of Corrections over 20 years. His IDOC admissions are for a range of charges: 5 Retail Theft, 3 Theft, 2 Burglary, and 1 Robbery.
  • 45-year-old S.B.’s 13 bookings into CCDOC total 981 days spent in jail at a collective housing cost of about $140,283. These numbers do not include time spent in IDOC and cost to house in IDOC.
  • S.B.’s most recent arrest occurred on August 28, 2014. He attempted to steal several packages of meat from a Jewel-Osco. Bond was set at $55,000. This case was continued 5 times before S.B. was sentenced to 2 years IDOC on February 18, 2014. He had been in jail custody for 174 days when he was sentenced– about half of what he would be required to serve in state prison.
  • Since 2007, all of S.B.’s convictions have been for the same charge – Retail Theft – for attempting to steal the same thing – packaged meat from the grocery store. The total cost of the items he is trying to steal is usually about $100. In one arrest report, S.B. states that he was stealing the meat to bring to a friend’s house to a barbeque.
  • S.B. has Robbery and Burglary convictions from 20+ years ago in his background. These combined with past retail theft convictions serve as a mitigating factors that trigger lengthy prison sentences for these low level crimes

For more examples, see http://www.cookcountysheriff.org/UnjustIncarceration/CaseStudyMain.html

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Sponsored by the Law Office of Jonathan S. Goldman

Des Plaines Police commander gets six months for falsifying DUI stats

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So, one-third of the entire Des Plaines police force are cheating liars who defrauded the taxpayers.  And they get to keep their jobs because there would be too many to replace.  Wow.

From the Chicago Tribune:

A former Des Plaines police commander who padded DUI arrest records so the department could get federal grant money was sentenced today to six months in prison.

Timothy Veit, 57, apologized in Chicago’s Dirksen U.S. Courthouse for his role in defrauding the National Highway Traffic Safety Administration and the Illinois Department of Transportation out of nearly $133,000 in public safety grant funding…

In addition to the six-month prison term, Judge Samuel Der-Yeghiayan sentenced Veit to 200 hours of community service. His plea agreement with prosecutors also requires him to repay IDOT about $34,500 in restitution…

Veit, a Mount Prospect resident, was ordered to report to prison by Dec. 16.

He was initially charged…

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Preckwinkle does about-face, parking to remain free at Cook County Courthouses

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Four years ago, Cook County Board President Toni Preckwinkle announced a plan to turn the free parking at the various Cook County Courthouses into pay lots.

In the years since, construction has been done at the various suburban courthouse parking lots, to restrict ingress and egress and to install the beginnings of either actual or automated cashier stands at the entrances.  According to the Daily Herald, the cost of all this construction was $1.9 million.

As someone who usually drives in and out of these courthouses anywhere from 5 to 15 times a week, I was not happy about the prospect of paying around $3,000 a year to continue my law practice.  When I expressed these concerns, I was told that President Preckwinkle’s attitude was that I should just pass the cost along to my clients.

Well, that was not a good solution, because many people who come to…

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RESULTS OF YOUR INTERNET BREATHALYZER…

YOU ARE TOO DRUNK TO DRIVE!

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Call a damn cab, stay overnight, just don’t become a statistic!

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The holidays and New Year’s Eve boast some of the highest fatality rates for drunken driving – and it’s not always the drunks who get killed…THE TRUTH CAN BE A BITCH!

BROUGHT TO YOU BY THE LAW OFFICE OF JONATHAN S. GOLDMAN
“We want to see you next year…and not as a DUI client or fatality!”

VOTE “NO” ON ILLINOIS CONSTITUTIONAL AMENDMENT

CHICAGO, ILLINOIS – Let’s start by admitting that encouraging people to vote “no” on a proposed amendment to the cleverly titled Crime Victim’s Bill of Rights doesn’t sound like a great idea at first glance. I understand that. Now let’s put that to the side and look at it for what it is, and how what appears to be a harmless, feel-good law is anything but.

On November 4, 2014, Illinois voters will be asked to amend Article I, Section 8.1 of the IL State Constitution to change the rights afforded to crime victims. Registered voters have most likely received the blue pamphlet outlining the proposed change and pros and cons and have likely thrown it away without reading it. This is one you need to read. And as you do, remember that a Constitutional Amendment is a form of legislating from the ballot. There is a separation-of-powers issue inherent with placing a law which should be addressed by the legislature after extensive hearings on a simple ballot where many people are ignorant of the issues and unintended consequences. More importantly, once an amendment is voted in as law, we don’t get another crack at it if we determine we don’t like it, unlike traditionally passed laws which pass through the houses of our elected state legislature.

The more appropriate way to pass a law such as this would be through the legislative branch, which is tasked with exactly this job – making laws. The unintended consequences of the law could be discussed, studied and compromised upon to allow for a law that actually achieves the goals it intends to instead of being detrimental to those who it affects the most. The big problem? Legislators would be forced to openly vote on the bill, and opponents would be maligned in every subsequent election as being “against victims’ rights” – a criticism unfounded in fact but detrimental to a campaign. So they have left it up to the voters, many of whom will vote based upon the Amendment’s name and a few brief paragraphs, in order to deflect responsibility for the negative consequences that will inevitably follow.

“Accountability in an election cycle can be poisonous.”

For the sake of simplicity, we will only be discussing the substantive parts of the Amendment. The rest of the law merely has changes in numbering which are not substantive:

8.1(a) Crime victims, as defined by law, shall have the following rights
(2) The right to notice and to a hearing before a court ruling on a request for access to any of the victim’s records, information, or communications which are privileged or confidential by law.
(5) The right to be heard at any post-arraignment court proceeding in which a right of the victim is at issue, and any court proceeding involving a post-arraignment release decision, plea or sentencing.

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ISSUE #1 – SENTENCING

SECTION (5) OF THE PROPOSED AMENDMENT WILL BE A STRONG DISRUPTION TO THE CRIMINAL JUSTICE PROCESS AND WILL ESSENTIALLY DESTROY PROSECUTORIAL DISCRETION, WEAKEN PLEA-BARGAINING AND CALL INTO QUESTION DECISIONS MADE BY PROSECUTORS AND JUDGES – It is the job of the prosecutor to bring a case against an individual charged with a crime. This includes working with the police to gather information and determining how society will best be served in examining the particular case in light of the facts, circumstances, and their experience as prosecutors. This amendment essentially introduces another attorney into the already crowded mix who can attempt to assert some sort of vague interest on behalf of the victim which is incongruent with the goals of the criminal justice system.

QUICK DEFINITION:
“What is Arraignment?” Arraignment is essentially the first appearance after a defendant has been charged with a crime. “Post-arraignment” basically means any decision or issue brought up in a trial court. It does not involve preliminary hearings or bond court – already covered in the previous Rights of Crime Victims and Witnesses Act.

There already is a method for second-guessing and armchair-quarterbacking of prosecutors and judges and it lies in the appellate and Supreme Courts. Victims do not have standing to sit in on conferences between the judge, prosecutor and defense attorney (Supreme Court Rule 402 conferences), nor do they have the right to try to veto a plea bargain.

RE-VICTIMIZATION BY “VICTIMS’ ATTORNEYS”

This new law will create a new class of “victims’ attorneys” whose only purpose will be to charge their clients attorney’s fees in exchange for making unnecessary noise during criminal court proceedings. Victims rarely receive restitution for non-financial crimes, and this will not change by allowing more access to the process for victims’ attorneys. For crime victims who believe they will receive money by being more involved in the process, there will be a strong letdown when they learn that they have just given a significant amount of money to an attorney in exchange for nothing. In essence, they will be financially victimized by attorneys with a sworn fiduciary duty to protect their interests. The proper forum for financial compensation stemming from a criminal act is civil court, where those who have committed acts which have injured others can be held financially accountable. Civil cases, unfortunately, take a great deal of time and effort on the part of the attorney, and many defendants who are incarcerated in prison have little to no money with which to compensate their victims. That said, civil courts exist for that exact reason – to compensate or make whole those who have been wronged by another. Most crimes are also torts which provide a victim with standing to sue in a civil forum.

Additionally, most non-lawyers and even lawyers who do not actively practice criminal prosecution or defense are unaware of the workings of the criminal justice system and the balance that must be struck in negotiating plea bargains and other case-related deals. Crime victims are often damaged physically, financially and emotionally by their victimizers. This Amendment, however, does not provide actual relief for this victimization. The problem is that it is not up to the victims to decide if they approve of a sentence which a defendant is to receive and to object if they feel it is too lenient. The nuances of criminal sentencing are a law school course all of their own, and without the perspective of seeing the sentences handed down and negotiated every day to various types of offenders, all victims and their attorneys hear is the amount of time for which someone will be sentenced. A victim may be furious that the person who pulled a bat on them is only convicted of a Misdemeanor and sentenced to SWAP (Community service served through the Sheriff as an alternative to incarceration), but the law puts constraints on the sentences which may be given to certain offenses. If victims’ attorneys are allowed to second-guess negotiations made between the prosecutors, defense attorneys and judges, cases will drag on for longer than they already do – and many felony cases can take over a year to resolve while a defendant sits in custody. Requiring a separate hearing to determine the victim’s feelings about a certain sentence will further add to the already swamped system.

There is also a serious danger that victim’s attorneys and prosecutors may “gang up” or collude to force the defendant into pleading to a more serious sentence than they otherwise would because the judge knows that he or she must deal with not only the demands for heavy-handed justice of the prosecutor, but with the demands for more serious sounding sentences from victims and their attorneys. The new law does state “The victim does not have party status…The court shall not appoint an attorney for the victim and that the powers of the prosecutor shall not be altered by the law.” In reality, however, the line between being a party or not will be blurred by this law. Anyone who is entitled to question the judgment of the court has de facto party status, essentially.

The questions which are not answered by the law as it is written are many. Can a victim or their attorney object to a decision made by a judge or a ruling made in the case? How much weight must a judge give to the objection of a victim – both on the record and in reality? Will judges who tire of the constant intervention of non-party victim’s attorneys be labeled as “soft on crime” in their next election and feel the need to maker harsher rulings when it comes to penalties?

THE LINE BETWEEN RESTORATIVE JUSTICE AND VENGEANCE AND RETRIBUTION MUST BE PRESERVED FOR OUR SYSTEM TO WORK. JUDGES MUST BE ALLOWED TO CONSIDER A DEFENDANT’S CRIMINAL HISTORY, PERSONAL BACKGROUND, SUPPORT SYSTEM, EMPLOYMENT AND OTHER FACTORS SPECIFIC TO EACH INDIVIDUAL IN CRAFTING THE MOST APPROPRIATE SENTENCE.

MANDATORY MINIMUM SENTENCING HAS PROVIDED US WITH A HARSH REMINDER OF THE REALITIES OF FORCING JUDGES’ HANDS IN SENTENCING WHERE OTHER OPTIONS MAY BE MORE APPROPRIATE. THESE POLICIES STEM FROM THE FAILED “WAR ON DRUGS” ERA, AND HAVE CREATED AN ENTIRE CLASS OF CRIMINAL RECIDIVISTS CAUGHT IN THE REVOLVING DOOR OF THE CRIMINAL JUSTICE SYSTEM – COSTING THE TAXPAYERS UNNECESSARILY FOR INCARCERATION WHERE ALTERNATIVES WOULD BE FAR CHEAPER AND MORE EFFECTIVE IN THE LONG RUN.

As it stands now, the Rights of Crime Victims and Witnesses Act (the “Act) already provides crime victims with a great deal of rights related to their presence, notification and involvement in cases in which they are involved. There are no substantive changes in the proposed law to the rights of victims not to be harassed, intimidated or otherwise mistreated during the pendency of the case. These rights are already present in the current Act and would not be strengthened by the new amendment.

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ISSUE #2 – ACCESS TO INFORMATION

SECTION (2) INVOLVING COURT HEARINGS FOR RELEASE OF CONFIDENTIAL INFORMATION DEPRIVES A DEFENDANT THE CONSTITUTIONAL RIGHTS TO INFORMATION WHICH CAN PROVE HIS OR HER INNOCENCE – This is where this well-intentioned law begins to gum-up the already ridiculously overburdened court system. Essentially, victims of alleged crimes will be entitled to a hearing separate from normal court-mandated discovery procedures when there is something about the victim which they claim is privileged or confidential. The first problem with this is the most glaring – criminal defendants and their attorneys are entitled, not just allowed, to obtain any information which may potentially show the innocence of the defendant or, more importantly, to show the truth of the matter. In criminal law, the victim’s medical records or other information can at times be vital to determining the guilt or innocence of the defendant. The U.S. Constitution and the Illinois Constitution provide for a criminal defendant to be able to confront his or her accusers and the information being used against them, as well as to information which may disprove or cast doubt on the credibility of the State’s evidence.

In truth, there is very little information which is “privileged” from the perspective of criminal discovery. Health care information is the primary restriction – requiring a HIPAA order to be signed by a judge before it can be released. Beyond that, privileges only extend to attorney-client privilege, marital privilege and a few other situations.

Confidential information, on the other hand, can be construed as anything. This is a huge issue in criminal discovery, where, as we discussed above, the accused has the right under the Constitution to access information and records which can prove innocence. If victims and their attorneys are allowed to constantly object to the disclosure of materials or documents, the court not only will be forced to have hearings every time this issue pops up, but information which could prove the defendant’s innocence may be inadvertently or intentionally blocked from discovery due to these objections.

THIS LAW CANNOT BE ALLOWED TO PASS. IT IS UP TO THE VOTERS IN ILLINOIS TO EDUCATE THEMSELVES BEYOND THE FEEL-GOOD TITLE OF THE LAW. OUR VERY FREEDOMS ARE AT STAKE. AND REMEMBER, TODAY IT MAY BE SOMEONE ELSE SITTING ACCUSED IN COURT, BUT TOMORROW IT COULD BE ANY ONE OF US. AND WHEN YOU ARE THE DEFENDANT IN A CRIMINAL CASE, YOUR ABILITY TO PROVE YOUR INNOCENCE MUST BE SUPPORTED IN EVERY POSSIBLE WAY. THIS PROPOSED AMENDMENT HAS BEEN OPPOSED BY BAR GROUPS, PROSECUTORS AND DEFENSE ATTORNEYS ALIKE. IT IS RARE THAT ATTORNEYS ON ALL SIDES OF THE AISLE AGREE, BUT THIS IS ONE OF THOSE CASES. THE AMENDMENT SERVES NO PURPOSE THAN TO PROVIDE A FALSE SENSE OF CONTROL OVER THE CRIMINAL JUSTICE SYSTEM. THE CURRENT ACT AS IT STANDS IS MORE THAN SUFFICIENT AND DOES NOT NEED TO BE CHANGED

VOTE “NO” TO THE PROPOSED AMENDMENT TO SECTION 8.1 OF ARATICLE I OF THE ILLINOIS CONSTITUTION “CRIME VICTIMS’ RIGHTS”.

SOMEDAY IT COULD BE YOU ON THE OTHER SIDE…

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(Image #2 credit http://www.loneandcosolicitors.co.uk)

Attorney Jonathan Goldman founded the Law Office of Jonathan S. Goldman in 2009 and works in Chicago and throughout Cook, DuPage and Will Counties. He concentrates his practice on felony trial defense, DUI defense and expungement/sealing of criminal records. He also works with concealed-carry (CCW) applicants and permit holders in appeals of permit denials and use-of-force defense in court. All views are those of Attorney Goldman personally and do not reflect the views or opinions of the Law Office of Jonathan S. Goldman or its affiliates.

Law Office of Jonathan S. Goldman Year-End Newsletter!

HAPPY 2013 FROM

THE LAW OFFICE OF JONATHAN S. GOLDMAN

 

ALL RISE…

Message From the Doctor:

Thank you to everyone who made 2012 our best year yet!!  As I look out my office window at a snow-covered Millennium Park, I can’t help but think of all of the wonderful clients, lawyers, courtroom staff and law enforcement officers who have helped me build my practice.

It is hard to believe that we opened our doors in 2009, moved into the Secretary of State building in 2010 and have been running full-speed ahead ever since.  This year, I owe a huge thank you to Matt Deavers, the third year law student at DePaul Law who interned with me during the Spring semester.  He has since moved on to greener pastures, but he has all the makings of absolutely top-notch attorney and was a great addition to our practice.  And it goes without saying, but I could not have done it without my jury trial partner Victor Churma.  We topped off 2012 with a huge not guilty verdict in a felony jury trial right before Christmas!  Big thanks also go to Mike Johnson – the Secretary of State mastermind, Shannon Lynch as always, Tirza and Maria, who work in the front office every day and keep this place running, and a list of attorneys and others too long to list.

The good news?  2013 promises to be even better!  Our expungement department has seen exponential growth, averaging 15-20 successful filings per month.  I have brought clients to every Executive Clemency hearing before the Governor’s Prisoner Review Board since January of 2011.  We’re still waiting on Governor Quinn to catch up and sign off on our pardons, but it won’t be long!

In other exciting news, we are working on expanding into other areas of practice both in-office and through of-counsel relationships and will continue to run a one-stop-DUI-shop out of our current office in the historic Pittsfield building on Washington and Wabash downtown.

Have a happy, healthy and safe New Years and know that while I may not say it often, I appreciate each and every one of you and look forward to what the future will bring!  Enjoy our year-end newsletter and feel free to email me with any comments.  Happy New Year!

                           This Year is Officially Adjourned,

                           Jonathan

                           Attorney Jonathan S. Goldman

                           Founding Partner

                           Law Office of Jonathan S. Goldman

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NEWS YOU CAN USE

Cell Phone Ban Begins January 14, 2013 in Cook County Criminal Courthouses

As of January 14, 2013, all cell phones, smartphones, ipads and other tablets, and laptops will not be allowed to be brought into any Cook County criminal courthouses by the general public.  This ban includes the Leighton Criminal Courts Building at 2600 S. California, the Cook County Juvenile Justice Center, the Skokie, Rolling Meadows, Maywood and Markham courthouses as well as all criminal branch courts.  Any devices capable of recording, taking photos or connecting to the Internet will be prohibited.

Pursuant to General Administrative Order 2012-8 by Hon. Chief Judge Timothy Evans, violators of this ban may be criminally prosecuted and/or held in contempt of court.  The ban does not apply to the Richard J. Daley Center at 50 W. Washington, where mainly civil and traffic proceedings take place.  Judges, employees, attorneys, persons summoned for jury service, police officers, media members on official business and other authorized personnel are exempt from the ban.

Reactions to the decision have been mixed.  Cook County Sheriff’s officials have expressed concern over the difficulties they will face in enforcing the ban as the gatekeepers for all courthouses and the ones most likely to be on the front lines of the cell phone war.  Cell phones and smartphones have become so universal that many will have difficulty separating themselves from their wireless devices used for business and general communication.  However, Judge Evans views these devices as a tool of intimidation which may be utilized by gang members to photograph witnesses or jurors in criminal trials.

From the Chicago Sun-Times:

Evans said in a prepared statement Tuesday that several judges who preside over court cases told him they were concerned “that people attending court proceedings were using their cell phones to photograph witnesses, judges, jurors, and prospective jurors. They also said persons appeared to be texting testimony to witnesses waiting their turn to testify outside the courtroom, while others were attempting to stream live to media comments by judges from the bench.”

“The court is sending a strong message to gang members and others that any attempts to intimidate witnesses, jurors, and judges in court will not be permitted,” Evans said in his statement. “The ban will help to ensure that justice is properly done by preserving the integrity of testimony and maintaining court decorum.”

Watch Chief Judge Timothy Evans discuss the ban on CBS2 News on December 17, 2012.

Courthouses have posted signs warning citizens of the impending ban, however snags are bound to occur.  Currently Will and DuPage Counties ban phones with cameras for the general public.  Whether or not the ban will have the intended effect remains to be seen.  In the meantime, be prepared to leave all electronics in your car if you are going to any courthouse or face some ornery security guards.

-JG

Speeders Convicted of Driving 40+ mph over Limit Face Class A Misdemeanors, License Suspension-In a move unofficially enacted through the Cook County State’s Attorney’s office in early 2012, traffic prosecutors in Chicago have been essentially prevented from offering supervision in speeding cases where the driver was clocked at 40mph over the speed limit.  Drivers ticketed or arrested for these Aggravated Speeding offenses face license suspension from the Secretary of State if convicted, leading to an increase in the number of speeding ticket trials.  The easiest solution, of course, is not to drive 40mph over the limit, however the threat of losing your license proves problematic to some who have few or no other moving violations and must rely on their vehicles to work or support their families.  But do you really need to drive 100mph anyways?

WE WANT TO SEE YOU NEXT YEAR…

We all know that the winter holiday season creates opportunities for drinking and driving.  From holiday parties to eggnog in front of the fireplace, alcohol has become a tradition during this time of year.

New Year Eve, specifically, sends many more people out on the roads who have had too much to drink.  Obviously, this is not a PSA, and I am not trying to scare anyone straight, but there are real life consequences to getting behind the wheel after you have had a few drinks.  Take it from a DUI lawyer and former EMT – it’s not worth it.  Period.

My advice is and has always been this: The most expensive taxi ride you will ever take on New Years’ Eve is a fraction of the cost of getting arrested and charged with a DUI.  Even a $35.00 taxi ride pales in comparison to what you will shell out if you get caught drinking and driving.  Breaking it down (averages/estimates):

IMPOUND FEE  $1500

FINES AND COURT COSTS: $2000

BOND: $500-$50,000

ATTORNEY’S FEES: $2500+

LICENSE REINSTATEMENT FEE: $250

ARRESTS FOR DRIVING ON SUSPENDED LICENSE: $5000+

HOSPITAL FEES, INSURANCE PREMIUM INCREASE, LOSS OF WORK TIME OR JOB, DUI CONVICTION ON YOUR RECORD,

DEATH, RECKLESS HOMICIDE CHARGES, LOSS OF LOVED ONE – Get the picture?

It will never be worth it to drive after you have been drinking.  There are enough taxis and people who can be bribed to be designated drivers that nobody should be arrested on New Years’ Eve for DUI.  And if you think you can outsmart the cops, think again (only I can outsmart the cops…and it doesn’t always work).  You may think that you are in top form, but for a sober person (i.e. Joe police officer), figuring out if a driver is drunk is extremely easy.  And on January 31, the cops will be out in force – looking for anyone who may need a pair of steel bracelets and a night in jail.  Trust me…It’s my job to know these things. 

Call a taxi, take the bus or train, or get a ride.  I just don’t want to be bringing flowers to your family on Tuesday.

Now go out and enjoy yourselves!  Turns out the world didn’t end on December 21, so we get another go-around.

With that, I wish you a happy, prosperous, healthy new year!  Shoot me an email, give me a call, or follow me on twitter – just keep in touch.  The distances may be great, but it’s a small world.

Happy new year 2013!

_________________

Jonathan S. Goldman

Attorney at Law

LAW OFFICE OF JONATHAN S. GOLDMAN

55 East Washington St.

Suite #2700

Chicago, IL 60602

773-809-5290 phone

312-795-1808 fax

Info@AffordableDefenseLaw.com

www.AffordableDefenseLaw.com

Follow us on Twitter @ChiCriminalLaw

Jake Shimon – live in concert

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Jake Shimon great acoustic set at Elbo Room in Chicago. 8/17/12

Click here for the first VIDEO clip!

MORE CLIPS OF THE SHOW ARE COMING SOON! Check back in a few days…

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Shimon works the crowd into a frenzy

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