One of the Law Firm’s Significant Cases of the Summer of 2016, Trial and Appellate Court Victory: DUI Field Sobriety Tests Instructions and Environment, Portable Breath Tests, the Need for Videos.

September 16th, 2016

It has been a terrific summer for the law firm on the Appellate Court front. First, the decision in People v. Taylor came down from the Second District. This is a DUI case. I represented Mr. Taylor in DeKalb County before the Honorable Robert Pilmer. First we won the petition to rescind based on the lack of probable cause and the unlawful use of the portable breath test. Afterwards, we tried to negotiate a better result on the strength of the that victory. After all, the issues of probable cause to arrest for DUI and the unlawful use of the portable breath test would be the same in the Motion to Quash as were in the Petition to Rescind. Despite four efforts to make appointments with the elected State’s Attorney to talk about this matter, two in person at the front desk with messages left, and two calls to support staff with messages taken, all efforts went unanswered.

Fine.

Having won the petition, it wasn’t like we would be arguing from a position of weakness. We then won the Motion to Quash. Why the State was surprised with this same-issue, same-result situation, remains unexplained.

The State appealed with a stated desire to get Judge Pilmer reversed. In its appeal, the Appellate prosecutor managed to take the 184 pages of record transcript, comprised of testimony, argument, and trial court ruling, and reduce it to a 3-page statement of facts in their brief. Might things have been left out? Not quite explained? Our brief and the Appellate Court was having none of that.

Important issues included case law from the Third District Appellate Court that attack our own Second District’s decision on portable breath tests, which I had argued was at best unfortunate and misguided. The Appellate Court agreed. Also, the Appellate Court made quite clear what consent meant in a portable breath test “request” situation, and that no such request occurred in our case. In a published opinion released this summer, the Appellate Court upheld Judge Pilmer’s rulings that the there was no probable cause to arrest my client for DUI, and that the portable breath test was given in an involuntary and therefore unlawful manner. Also, the opinion sets forth additional ways attorneys can address how police instruct on field sobriety tests, as well as the impact of flashing lights on all Field Sobriety Tests.

Something of continuing concern regarding a police officer again occurred in this case. That is, once again we had a video / audio that was a stranger to plenty of significant so-called “facts” in a police report. It is a scary thought as to what the officer may have said under oath at the testimonial hearings had there not been the video /audio recording capturing the truth. That, sadly, IS a fact. I want to emphasize that this is not inherent in officers, but it is proof as to why defense attorneys must be on guard at all times, and chase after any and all audio / video information.

Please read the following published opinion of People v. Taylor through this link. (Speedy trial and unlawful home entries are next up in this blog series.) http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/2ndDistrict/2150634.pdf

Criminal Defense in Aurora, IL. Sometimes the Police Make it Easier for Criminal Defense Lawyers to Win, but Make the Citizen’s Life Miserable

November 16th, 2015

Imagine having to see a criminal defense lawyer on criminal charges simply because you were an invited guest to a house or apartment, even if that person inviting you was your mother. And not just a misdemeanor either, but a felony charge. And now you have to pay the criminal defense lawyer and you’re out that money even if you win. Welcome to Aurora, Kane County IL., as well as DuPage County.

The Aurora Police Department justifies this through something called a Trespass Agreement. The agreement is one page long and it’s between the police department and the landlord. The Aurora Police have repeatedly interpreted this as an agreement that allows officers to screen everybody going in and out of a place simply because they do not recognize them. They claim it helps them monitor troubled areas by creating a ban list, allowing arrests for trespass, and it is a way to work with the landlord to reduce problem areas. Here are the obvious problems.

Foremost, Illinois law, reflective of both State and Federal Constitutions, allows us to invite over whomever we damn well want to invite over. This principle does not change whether the neighborhood is full of mansions or the high-density apartment complex. In order to allow ban lists of any kind – the agreement must BE IN THE TENANT’S LEASE! After all, how can third parties contract away OUR rights to invite over whom we please? They can’t, but in Aurora, IL, they do, and press criminal charges to boot. If a person is considering whether to rent an apartment and such a ban list is a condition of the lease, then that prospective tenant can consider that provision before signing, and then choose to agree to it and move in, or not agree to it and live elsewhere, but third parties cannot do it for them.

I’ve had several cases involving the Aurora Police and these so-called Trespass Agreements. In each case the agreements have been around five, ten, or more years, and these officers still testify that the neighborhood is a high crime, high-drug area. Well then, either these officers are lying in order to justify the reasons for stopping the defendant or the trespass agreements haven’t been working to reduce crime.

What’s worse, the Aurora Police know that the Illinois Supreme and Appellate Courts have ruled that trespass agreements that are not part of the tenant’s agreed lease are void; also, even if in the lease, they cannot be used to justify stops of people simply because the officer doesn’t know the person. Still, the Aurora police do it, and I have a case now where the Aurora police have made four trespass arrests on a person with no other criminal history and, after talking with the landlord – nope – there’s nothing in the lease about trespass agreements.

Is it arrogance, or something worse? I blogged about Trespass Agreements a while ago, and won two motions since. All in Aurora, IL. The Kane County State’s Attorney’s Office, to their credit, has dropped a few of these cases too. It is hard to imagine the Aurora Police, who also review decisions from our courts and have lost repeated cases, aren’t fully aware. Regardless, here we go again.

Drug Charges! Drug Charges! Drug Charges! For Criminal Defense Cases, Where Are the Treament Centers?

November 4th, 2011

A man charged with a nonviolent criminal felony charge sits in jail in Kane County. He knows his drug history situation, but it’s hard for him to admit it to others. He’s a young black man, poor with a poor education, and wonders whether anyone will believe him about his drug addiction or, even worse, whether anyone will care about a poor, young black man facing drug charges. He weaves and he bobs and comes up with every other excuse until I ask him, What’s really going on here? He cries and wants to run out of the client meeting room at the jail because he’s crying. He stops and says he has nothing. Nothing until he stops using drugs – he wants to know if I’ll listen, and if I will help him.

I am his criminal defense lawyer, hired to represent him on his nonviolent felony criminal charges. It is my job to help him, I admit that, but I hope people accept I have a passion beyond the legal fees. Sometimes with lawyer jokes abounding, it’s hard for people to believe. But you know what? – it wasn’t just me giving a damn that this man got his chance for the first time in his life – it was the prosecutor in Kane County too. The Kane County prosecutor offered prison at first, but then agreed to the TASC program (Treatment Alternative for Safe Communities) after looking at the man’s history, the police report, and his plea for help. The TASC evaluator agreed. Moreover, the Judge agreed, and gave my client not just lip service, but a talk that showed how much the court wanted him to make it.

    After delivering the paperwork to TASC and the probation department that day, I contacted TASC to learn my client was 4th on the treatment center waiting list. Great news for my client, and I went to the jail to tell him so.

     But two months later – he’s still in jail at about seventy taxpayer dollars a day! No calls, no mention there’s a problem. What’s wrong with TASC?

     Here’s what’s wrong – severe cutbacks in treatment centers as well as in TASC personnel. Experienced, hard-working, caring people losing their jobs; treatment centers losing bed spaces or closing down altogether. To those who say, Good, put all those criminals in jail, I point out that it costs $24,000 to $27,000 a year to house someone in prison, where treatment programs are extremely limited and where the person is released the same way he or she went in, without at least an opportunity to reach recovery. If people think that jail ought to “cure” addiction, then they do not know a thing about addiction. Besides, the percentage of people this country has in prison for non-violent offenses ought to embarrass everyone.

     I am all for people making money (hey, I’m a lawyer, after all, right?) but whether it’s treatment for the addicted, the mentally ill, the aged, the wounded Veteran, the child in need, well, I just don’t understand what we’re doing these days. Perhaps out-of-sight, out-of-mind, provides comfort to some. But this country’s roots began with the motto – E Pluribus Unum,  From Many, One, about a hundred and fifty years before In God We Trust made its appearance. Has that been forgotten?

     Like wounds, physical ailments, mental health difficulties, unemployment, and, of course, the aging process itself, addiction can happen to any of us or the loved ones around us. These days we all seem to be waiting for the money that’s there in the private industry to be invested in our own country, while political gamesmanship and name-calling continues unabated, with some media people getting wealthy off just that. In the meantime, people suffer; people die. Shouldn’t we strive for better?

     After this criminal defense lawyer learned what I could, and called who needed to be called, and faxed and mailed what needed to be faxed and mailed, I sat down with my client, said my piece, apologized, and asked him to say his piece. I think he’s okay, and still has the right attitude to receive treatment. I hope so. Only time will tell. I’m not writing all this to tell you how to vote or which political party you should align with. Instead, I’m just putting the facts out there about one fellow human being, his situation, and the fact that any one of us or someone we may know, may be in the same situation one day.

Criminal Defendants, Criminal Charges and their Criminal Cases: Who are “THOSE” People?

October 26th, 2011

As a criminal defense lawyer, defending a lot of felonies cases and drug defense cases, I often get asked by people who are not criminal defense lawyers: “How can you represent those people?” Of course I know they’re talking about criminal defendants charged with crimes. But “those” people are sons, daughters, spouses, parents, co-workers, friends, and so on – not just mere people charged with criminal offenses. And, guess what, “those” people are quite often innocent of the crimes they’ve been charged with. Oftentimes the police or the prosecution overcharge people with criminal charges, such as intent to deliver on drug cases. I’ve seen intent to deliver charged with misdemeanor amounts of cannabis and near-residue amounts of controlled substances, which, if convicted on such higher-grade criminal charges, bars most options for treatment. 

     Some people who have asked me the question, “How can you represent THOSE people” have later on needed my criminal defense lawyer services, and have appreciated my work in a criminal court on their behalf.

     That is why, to this criminal defense attorney, I much rather use the words “Defending the Accused” than making any reference telling a person that they are criminal defendants. They are presumed innocent, after all, the foundation of our criminal justice system, and are often in fact not guilty and, if guilty, were sometimes arrested via unlawful police conduct.

     Even if someone is caught “dead-to-rights” as a person subjected to a criminal charge, the person still needs to be treated like a human being – because they are. It does a criminal defense lawyer no good to look down his or her nose at “THOSE” people, but instead must give the client a chance to talk, to explain how or why; at the drug addiction seminars I have attended, I learned that drug addicts have often been abused physically as well as emotionally, and have already had their share of being on the receiving end of yelling and lecturing, without much chance to talk. There is great power in telling the drug addict, for example, that it’s his or her turn to talk, and for the criminal defense lawyer to listen. That alone is often a first in the lives of many.

      With all the alternatives available to a person in terms of drug treatment and counseling, how in the world can a criminal defense lawyer know what to do if we don’t, you know, shut up and listen? I was humbled when,  about ten months ago, I was told just that by a client. I did shut up. He did talk and I heard and I listened. Doing so allowed this criminal defense attorney to talk to the right people within Kane County’s highly effective drug court; doing so also allowed the client a chance to hear things from his own mind out loud, causing him to hear the sound of his situation in his own words, inspiring him even more to make positive changes in his life. He is now ten months in recovery. Is there a connection to a criminal defense lawyer shutting up when talking with the client? – well, he’s the one succeeding, let’s leave it at that.

     So – to all “THOSE PEOPLE” asking how can I represent “THOSE PEOPLE”? – my answer is: If it ever becomes necessary, I’d be happy to represent you or anyone else, if the need arises, and to do so with the respect any person deserves.

Drug Defense / Criminal Cases / Alcohol Case, Elgin IL Branch Court, Kane County

October 24th, 2011

Alcohol, drugs, and criminal charges. Defending a lot of drug defense cases as a criminal drug defense lawyer: not too long ago, I looked into the eyes of a man who was the opposite of everything I ever wanted to be, or what I would eer want to see with someone facing a criminal charge. It happened by a chance meeting, but felt inevitable by the time the EMTs took him away.                

     I had arrived at the Elgin, Illinois Branch Court that early afternoon, armed with my criminal defense lawyer pinstripes, criminal defense lawyer brief case, and criminal defense lawyer case law, to represent a young woman in a contested hearing on a traffic charge also dealing with a drug charge. At the entrance to the building, a man, probably around 60, asked if I would help his friend, probably around 75. I couldn’t talk much to them at the moment as my client’s hearing was set to go, but the older man’s traffic ticket and fine seemed easy enough. I said I’d help after my client’s hearing was over. Both men left so the older man could get the money needed to pay the fine from an area ATM.                

     With the hearing over successfully (motion to quash arrest and search granted), I saw the older man now had the money to pay the fine for his traffic ticket. As I sat next to him, I got a good look at his eyes. Extremely bloodshot, watery, flitting as though too embarrassed to look at me. His short, unkempt hair matted with new and dried sweat. He had shaved but had missed patches of beard, and his pale skin blotted red here and there. His speech wasn’t slurred, but his sentences were clipped, as if he felt no need to speak since the sagging state of his thin-limbed body proved everything about him. The words on his T-shirt expressed an irony: United States Veteran. Proud and Strong.                

     Turns out the friend, the man I thought was 60 to 65 was actually a robust 77-year-old man, energetic, neatly dressed, polite with clear eyes. “How old is he?” I asked him, about the man I had thought was at least 75. The friend sighed in a way that told me I wouldn’t believe him. The man with the ticket, who I thought was an unhealthy 75, was only 54, a year older than me.

     I asked the 54-year-old to smile. He did.

     No teeth.                

     The 54-year-old man paid the fine on his ticket and walked with me and his friend to a hall beside the courtroom. His arms shook and we all sat down on the chairs there.  I asked him, “How long have you been an alcoholic?”                

      There was no alcoholic odor about him, but it’s common for alcoholics to do their best not to drink the day before a court date. His shakes no doubt were the DTs. The friend filled me in.                

     He had been military for 9 years, with an honorable discharge. Always a drinker for the 12 years these two have been next-door neighbors. An avid fisherman who had worked as a highly skilled machinist. The drinking, and extreme smoking too, continued and intensified. The list of this man’s losses due to alcohol was nearly complete: fired from his career, divorced, the ensuing girlfriend leaving him, a son who wouldn’t talk to him, a drunk driving arrest where he failed to even remember the conditions of his court-ordered supervision, let alone follow them, which led to revocation of his driving privileges. Then the unlawful driving tickets began to mount and his house fell into disarray. Foreclosure was becoming inevitable since he ignored his mail and had no idea what bills were overdue. All he had left was his life. Even that was ebbing away fast at age 54. And what for?                

     The cheap beer and hard liquor in his fridge.                

     Somehow this man had been caught driving under the influence only once in his life. Why his ticket and the fine he had to pay were so mild the day I met him remains unexplained. Still, with the state of his mounting legal troubles, there was only one thing that was going to save what was left of his life, as well as his freedom and surely the safety of people out on the road should this man again get behind the wheel of a car. He needed long-term inpatient treatment with aftercare. Now. That’s when the friend laughed. 

     It turned out that the friend had taken his neighbor to an area Veterans hospital as well as an alcohol evaluator. He was sent away both times. The professional in each instance had deemed him “un-evaluatable.”                

     In my 26-year legal career, I have never before heard of a person deemed to be “un-evaluatable.” I asked this human being, “After all that’s happened, all that we’ve talked about, to keep you out of jail, to keep you out of prison, to get you healthier and stop endangering people around you – what are you going to do with those cans of beer and liquor bottles in the fridge?”                

     Without waiting a beat, the man said, “Drink ‘‘em. I ain’t going anywhere.”                

     I asked the friend why he keeps trying to help when it seems that his neighbor doesn’t want to start. Before he could answer, the neighbor made a sickening gasp. He stiffened, jaw clenched, eyes rolled back, arms outstretched as if reaching for a ghost, and his mouth frothed. I placed my hands on his shoulders to keep him from falling out of his chair during his seizure, and shouted for court security. The friend helped me lower him to the floor. The friend’s eyes teared up, but he did not speak the words of an enabler. Instead he said, “I warned you your drinking would lead to this, you goddamn son of a bitch.”                

     Court security attended to this man in an impressive, professional manner. Likewise with the EMTs. Fifteen minutes later, the man was on his way to a hospital as his friend and I watched the EMT vehicle and fire truck siren away.                

     We sat quietly on a bench for a moment and began to talk about our lives, as strangers sometimes do after sharing a shocking event. This friend, too, had been in the military. He was good with his hands and had been involved in building a lot of the infrastructure from Elgin to Aurora, Illinois. He loved his yard work. He loved the fact that he was well at age 77, enjoying an active life with his wife of 51 years. When it came to his neighbor, the friend said he enjoyed fishing with him, he was good company, until alcohol was all that remained of his life.                

     “I never told you why I keep trying to help that poor son-of-a-bitch,” he said, patting my back. “It has to do with my faith. I don’t like to say the words, but I try my best to do the deeds. Besides, like I said, he used to be good company on the fishing boat.”                

     I gave the friend my business card. I told him if his neighbor does go into long-term treatment, to let me know and I’ll represent him. The judges will need to hear he’s in treatment and that he’s serious about it, or else he will be in jail for a long time for the sake of everybody’s safety. The friend added the obvious: “Or dead.”                

     It had been at least twenty minutes since the EMTs had taken the neighbor away. The friend and I parted for our cars and our own lives filled with loved ones and active things to do. I’m sure George knew as well as I did that it was not likely we would talk with each other again.