Illinois Criminal Defender Voice

News, Updates, and Insight on Illinois Criminal Law

Quick Hits On The Criminal Law

By Don Delbert on Posted in Current Events, In The Courts, Incarceration

These news stories about the criminal law caught my eye in recent weeks.  Some have been the subject of  recent blog posts.

  • The Appellate Court has ruled that prosecutors may use hearsay evidence against Drew Peterson in his upcoming murder case.  Hearsay statements are made out of court and are inherently unreliable.  In this case, the maker of the hearsay statements is dead and not subject to cross-examination, thereby denying Drew Peterson his right to confront his accuser.   The problem is that these hearsay statements may never have been spoken.  And if they were spoken, they may have been remembered incorrectly, heard incorrectly or may have been misinterpreted in meaning.  Further and most importantly, the person testifying to the hearsay most likely doesn’t know if the statements are true or not.  The dead person could have been making it all up.  The point is that nobody knows and it is unreliable and shouldn’t be used in a murder case.
  • Rehab Works!!  The Winnebago County judicial system’s efforts at rehabilitating eligible offenders is proving to be a great success.  Many of those coming into the jail are receiving services aimed at keeping them from further offending.  The ultimate goal is that after being in jail, the rehabilitated offender will be placed into a job.  I am in favor of any program that aims to help people not re-offend.  The problem is there are no jobs.   While drug education and G.E.D. programs are noble in cause, they are ineffective in a jobless economy.  People that have never been in trouble, including returning veterans, can’t find jobs.
  • The debate about closing the House of Horrors, a.k.a. Tamms Correctional Facility continues while the inmates continue to suffer.  This article highlights some very compelling reasons why Tamms should stay open.  The list of crimes committed by its inmates is lengthy and brutal raising legitimate concerns about the safety of other inmates and staff should the Tamms inmates be transferred to less restrictive facilities.  I suggest that a compromise be found wherein Tamms stays open with changes to the operating procedures to provide a more humanitarian approach to even the most violent offenders.

Do Guns and Aggression Make Florida A Safer Place?

By Don Delbert on Posted in Current Events, In The Courts, Uncategorized

When an adult Neighborhood Watch member shot unarmed black teenager Trayvon Martin, national attention focused on the issues of self-defense and Florida’s stand-your-ground law. Illinois has a similar law. The following taken from the Illinois Compiled Statutes specifically refers to the justified use of force in defense of self or another:

 Sec. 7-1. Use of force in defense of person

“(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Self-defense laws evolved over centuries of court decisions on a case-by-case basis. See this complete explanation of the evolution of the common law and the right of self-defense. Much of U.S. common law came from England and continues to change over time. It is the foundation of the American legal system. Under historical common law, victims sometimes had a “duty to retreat” unless they were backed up against a wall or with no way to escape. In this way, the common law discouraged confrontation and the escalation of violence. Stand-your-ground laws encourage the exact opposite.

In Illinois, the law encourages the use of aggression to meet aggression. A public policy that promotes aggression and violence can only lead to increased death and injury. In states where citizens can carry concealed weapons, terrible incidents like the Trayvon Martin case seem almost inevitable. Guns and aggression can’t sustain a safe society. It didn’t work in the old Wild West and it isn’t working in Sanford, Florida.

 

Criminal Defendants Have Right To Competent Plea Bargaining Says Supreme Court

By Don Delbert on Posted in Current Events, In The Courts, The Clients, Uncategorized

Most criminal cases are resolved by plea bargain – more than 9 out of 10, according to the Washington Post. It works like this: the prosecutor agrees to a specific sentence with the intention of inducing the defendant to plead guilty. The reason plea bargains are so common is that the potential sentences otherwise can be unbelievably harsh. A person charged with a crime, where substantial evidence exists to convict, must consider the plea bargain as the safest way to resolve the case. The defendant can agree to the plea bargain or take his chances at trial. If the defendant loses at trial, then there is a sentencing hearing and a judge can impose a sentence up to the maximum.

As a criminal defense lawyer, I take the negotiation of a plea bargain very seriously. Each case is different, and much thought and evaluation goes into the advice that I give my clients.  The United States Supreme Court ruled in a 5-4 decision that defendants in criminal cases have the right to competent representation during the plea bargaining phase. The court examined two cases on appeal. In one instance, the lawyer failed to inform the client of a plea bargain offer. That offer was for ten days in jail, and when the client pleaded guilty without a deal, he received a sentence of three years instead. If the client had known about the offer, he would have taken it and received a much lighter sentence. In the second case, the lawyer advised his client to turn down an offer: the lawyer believed his client could not be convicted of attempted murder because he had shot the victim below the waist. The client turned down the offer, went to trial, and was convicted and sentenced to 15-30 years. The offer had been 4-7 years.

I have always believed a lawyer is duty-bound to present any offers to the client. The Supreme Court ruling makes this duty a legal obligation. After counsel tells the client about an offer, the client must decide for himself whether to accept or reject the offer. Counsel can and should offer guidance but should never decide for the client. In the second case described above, counsel persuaded the client by using faulty information, and that is also not allowed under the new ruling requiring competent representation, meaning that the lawyer must know what he’s talking about.

Remember, four of the justices, all conservatives, dissented from the majority opinion. Justice Antonin Scalia wrote that he believes this ruling “elevates plea bargaining from a necessary evil to a constitutional entitlement,” and he seems to prefer an ideal system in which every defendant faces a full trial. But if plea bargains already happen in more than 90% of criminal cases, it’s important to ensure that every defendant receives the same treatment.

House of Horrors To Be Closed By State of Illinois

By Don Delbert on Posted in Current Events, In The Courts, Incarceration, The Clients

If you build it, they will come.  That was the approach the State of Illinois took when it built the super-max prison, known as Tamms, down in southern Illinois.  Visit the Tamms Correctional Center website to read about the prison and the annual cost to house an inmate.

Now, please take a minute and read a first hand account of solitary confinement and suffering as told by another former inmate at Tamms.  How many men have been abused and tortured by the State of Illinois and then been released to society as vicious, damaged humans?  The punishment at Tamms actually makes the prisoners worse when they finally get out.

Since it was first built, the State of Illinois has had to find ways to sentence prisoners to this horrible facility.  The place was empty, therefore government officials started bending over backwards to single out prisoners for Tamms.  Any assault on a prison guard or any assault on a fellow inmate would be sufficient to get you sent to solitary confinement  in Tamms for a long, long time.   Assaults in prison are commonplace and usually don’t warrant such extreme measures.   Assaults are crimes and should be charged in criminal court resulting in additional sentences.  No rationalization can be accepted for the conditions in Tamms which cause men to become mentally ill and do the horrific, sad and pitiful things described by the former inmate.

Finally,  there is talk is about shutting the place down.  It is not due to the inhumanities committed there, but because the funds are drying up.  The House of Horrors is just too expensive to keep going.  Close Tamms Now!!

 

 

 

 

Criminal Law Quick Hits

By Don Delbert on Posted in Current Events, In The Courts, Murder, Tasers

These news stories about the criminal law caught my eye in recent weeks.  Some have been the subject of  recent blog posts.  Some are related to each other.

Tasers Bad For Public Health

By Don Delbert on Posted in Current Events, In The Courts, Uncategorized

The following are  local news stories about Tasers and their use by the police:

  • A 21-year-old man suffered a heart attack after being shot by a Taser.  (Click here to read story)
  • An intoxicated woman that was handcuffed and shackled to a bench in the police station was repeatedly shot with a Taser when she refused to sit down. (Click here to read story)
  • The Rockford Police Department is going back to the use of  the Taser by its officers. (Click here to read story)
After reading about this, it seems that Tasers are incredibly dangerous to the general public.  If a 21 year old man can be put into cardiac arrest after being shot with a Taser, then it is not a safe device.   Further, police officers will overuse the device just because they can. The overuse of the device is exemplified by the shooting of the Taser into a bound and restrained woman that presented no threat to anyone merely because she refused to sit down.  Lucky for her this was all captured on video or it would be like it never happened.

The Annual Blagojevich Family Letter (purely satirical in nature)

By Don Delbert on Posted in Current Events, In The Courts

December 26, 2011

To All My Fans:

Well, it’s hard to believe how quickly 2011 has flown by.  Patty and the girls had a really great Christmas with the new puppy that we got for the girls to take their minds off the fact that I’m no longer going to be wearing $5,000.00 suits for the foreseeable future.  In fact, I’ll be giving up my pinstripes for some other kind of stripes. Former Governor George Ryan is wearing them right now too.  Plus, the really great part is they’re free.  Just like the bus rides I got for senior citizens.

Many of you might have heard I’ve recently had a little trouble with the law. In fact, after I totally lucked out and got a hung jury on my first trial, the big-shots at the U.S. Attorney decided to retry me. This in spite of the fact I did nothing wrong and I will prove it in court.  Oh wait, I didn’t prove it and got convicted and sentenced to 14 years in federal prison. Not to worry, I am helping write the appeal and will be out soon.

Before my first trial I appeared on shows like The View and The Apprentice where I proved my innocence. I hoped the judge and the prosecutors were watching.  If so, I bet they were as impressed as Mr. Trump was.  I still can’t believe he kicked me off the show for not being able to text or turn on my laptop.  Talk about humiliating.  I guess I can’t be his running mate either for a while.

Well, I don’t want to sound like a braggart while others are suffering, but I had a really great year and have left my fingerprints on the State of Illinois.  I believe I will be remembered for my most important achievement, which was … removing the tollgates.  This single act certainly outweighs any of my unsuccessful attempts to shakedown Children’s Memorial Hospital or to sell Obama’s senate seat.  Those federal prosecutors only focused on the negative.

Now it is time to say goodbye for real and to start serving some real time.  So in my best Elvis voice I would just like to say “Everybody in the whole cellblock is dancing to the jailhouse rock.  That’s right Mama.”

 

Sincerely,

 

Rod Blagojevich

 

Sandusky’s Lawyer Using Very Unorthodox Methods

By Don Delbert on Posted in Current Events, In The Courts, Sandusky

Today accused serial child molester Jerry Sandusky waived his right to a preliminary hearing in the cases against him.  Read all about this questionable decision here.  Right up until the time of the hearing his attorney, Joseph Amendola, led everyone to believe that this was a day that the defense was waiting for.  The day that Jerry Sandusky would confront his accusers.  But none of this happened.

First, a little background information.  In Illinois there are only two ways to be charged with a felony.  The first way is by an indictment issued by a Grand jury.  The Grand Jury meets in secret and hears evidence about possible crimes.  Since the Grand Jury meets in secret, the person being charged is rarely present and only finds out about the charges later.  If the Grand Jury believes “probable cause” exists, that is “more likely than not a crime has occurred”, then they vote to indict.  This is a very low hurdle for prosecutors to clear and they usually get the indictments they are seeking.

The second way is by preliminary hearing where the prosecutor presents the same type of evidence to the judge, only this time not in secret.  The defendant and his lawyer have a right to be present and a right to cross-examine the witnesses that testify.  The prosecutor once again must prove that “more likely than not, a crime has occurred.”  Once again, this is a low hurdle to clear, and the judge usually makes a finding of “probable cause” that a crime has occurred. On a rare occasion, the judge will made a finding of “no probable cause” and the case is dismissed.  If this happens, then the prosecutor can still go to the Grand Jury for another chance.

By waiving his right to a preliminary hearing, Jerry Sandusky has forfeited his right to hear his accusers testify under oath regarding these charges. Since one never knows exactly what a witness is going to say, this is a great opportunity for the defense lawyer to ask as many questions as the court will allow and to get the witnesses talking.  This gives the lawyer a chance to size up the quality of the witnesses for the prosecution.  Are the witnesses strong and sure of themselves, or do they vacillate and look weak?  Are they sympathetic types or otherwise?  And do they consistently tell the same version of events?  A defense lawyer uses the preliminary hearing to try and discover as much about the prosecutor’s case as possible.

In this case, Sandusky gave up the right to have his lawyer question an assistant coach that has been reported to have witnessed Sandusky sexually assaulting a child.  What exactly did he see? What exactly did he hear?  Where exactly was he standing?  How long did he observe?  Was the lighting good?  Did he need glasses and did he have them on?  These questions will not be answered until the trial begins.

Since this case started, Sandusky’s lawyer has allowed his client to go on national television and admit his fondness for children.  And now, when given the opportunity to question an accuser, Joseph Amendola has failed to ask even one question of the man that says he saw Sandusky sexually assaulting a child.

 

Blagojevich Gets Humble A Little Too Late

By Don Delbert on Posted in Confession, Current Events, In The Courts

Rod Blagojevich apologized to the Court at his sentencing hearing but stopped short of admitting his crimes.  Read the full story here. This act of contrition by the former governor came too late to help him. Throughout his impeachment and subsequent prosecution, Blagojevich insisted that he did nothing wrong. In fact, many would say that he acted like he believed that he was a celebrity rather than a person facing a lengthy prison sentence. It was speculated that he was as sly as a fox and that his unorthodox methods were brilliant. I never thought that.

I think Blagojevich acted foolishly in the face of a federal indictment. The Assistant U.S. Attorneys watch television too. They followed his antics as he paraded from show to show, smiling and goofing around like he didn’t have a care in the world. His red carpet-like appearances in front of any camera only served to agitate the people that were trying to convict him. He barely escaped being convicted in his first trial and faced a much tougher case the second time. The prosecutors had learned from the first trial and didn’t make the same mistakes twice.

At his sentencing hearing, Blagojevich finally figured out that he was heading to prison and apologized to the Court but failed to admit to his crimes. The Court didn’t give his statement much weight. His actions during his case had caused irreparable harm because it made his apology sound self-serving and insincere. He wasn’t sorry until he was about to get slammed. He ended up being very, very sorry.

I feel very badly for Blagojevich’s family. He made things worse by the way he acted during his case.

 

 

 

Winnebago County Judge Tosses Accused Baby Killer’s Confession

By Don Delbert on Posted in Confession, Current Events, In The Courts, Murder

Winnebago County Circuit Court Judge John Truitt granted a defense motion today and ruled that accused baby killer Katie Stockton’s confession was illegally obtained by the police and may not be used against her at her trial.  She had told the police that she did not want to talk and that she wanted a lawyer.  At that moment the questioning should have stopped.  Any confession after that is deemed unlawful.  Read the full story here in the Rockford Register Star by reporter Jeff Kolkey. A confession is the most dramatic and damaging evidence there is.  This kind of motion is never easy to win because the only witnesses are the defendant and the police.  The judge had to see very convincing evidence to have made this ruling.  To have the confession tossed due to police misconduct is the result fantastic criminal defense lawyering.

However, fantastic lawyering is not enough.  The case must be heard by a criminal judge that, due to years of experience on the bench, has the confidence to be secure in his rulings.  Judge John Truitt has shown that he has more than confidence.  He has courage and guts  as proven by issuing this ruling that is bound to be unpopular with law enforcement.  He has proven that he doesn’t make his decisions based on popular sentiment.

Judge Truitt is upholding the highest standards on the bench and is one of the many great judges that make the judicial system work.