Posts Tagged ‘Criminal Charges’

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

Friday, 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?

Wednesday, 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.

Domestic Battery Criminal Charges in Aurora, Elgin, Batavia, Geneva, St. Charles – What’s going on?

Friday, March 25th, 2011

If you have ever stopped by a criminal court room set aside for domestic battery criminal charges, the crowd from day to day may make you wonder whether half of the citizenry is beating up the other half, whether it’s in Aurora, Elgin, Batavia, St. Charles, Geneva or any other Illinois town. As a criminal defense attorney, I ask, What’s going on?

     Let me give you a suggested explanation by example of a real criminal case invovling such a criminal charge of domestic battery and another criminal charge growing out of it that should surprise you:

     A husband and wife work at the same business that covers DeKalb, DuPage, Kendall and Kane counties. A big busniess. Turns out he’s having an affair and the wife finds out about it. At an office party in a public setting, he starts dancing with the other woman in front of all their co-workers. The wife, understandably upset, runs up to her husband waltzing with the other woman, kicks her husband in the shin one time, and runs away in tears. The husband runs after his wife to bare his soulful apologies and to seek reconciliation, which the husband and wife so begin to reconcile. Regardless, the police are called and she’s arrested – for domestic battery in which, if found guilty, she cannot get supervision even though she has no criminal history at all. She must be convicted, pay a hefty fine, face up to a year in county jail, and spend 26 straight weeks getting domestic violence counseling.  But on trial day, since the prosecution insisted on going forward despite these facts, the husband, with a good dose of guilt and now reconciled with his wife, decides not to appear. Now he’s charged with contempt of court and prosecuted for failing to appear – and on and on.

     I know this case. It’s real. I represented the husband.  

     Here’s what’s true: Abuse of women by a boyfriend or husband went on for far too long without getting the serious attention such crimes deserved. The abused woman often suffers immeasurably, succumbing not only to obvious and horrific physical damage, but psychological damage as well. There can be no denying that at all. Specialized domestic violence courts, as I recall their basis, were created entirely on this very real issue and need.  The intended goal was and remains  laudable. To provide not just the prosecutorial attention, but also to provide counseling services to help end the cycle of the physical as well as the related psychological abuse against women. But something happened that I believe has diverted such courts from these laudable goals. 

     The Illinois domestic violence statute covers every aspect of the phrase “family member” that a person can think of. Not just between spouses as well as people dating for at least a minimal time, but it also includes relationships between any “family member” via blood or marriage. Siblings and step-siblings come under this law, possibly cousins, too. Parents and their kids and step-children. Regardless of the domestic relationship, any unwanted touching, whether it causes bodily harm or not, are all under the same Illinois domestic violence statute and arrive at the court room that was supposed to help address abuse against women.

    As a result, fights between siblings are domestic batteries no matter how benign or serious. A substance-abusing, often-suspended-from-school teen can call the police and make claims against Mom or Dad who have been struggling for years with their child’s bad behavior. Then there are the claims that a man has bitten his girlfriend hard in the face, also punched her several times in the face hard several times, hit her over the head with a heavy object, run her over not once but three times with a car – and in each case the woman has not one injury on her, is drunk at the time even as the man is calm and is actually the one bearing an injury – and he gets arrested anyway. These are fact patterns in domestic violence cases from Aurora, Elgin, Geneva, Batavia, and St. Charles that I’ve handled over the years. 

     To make matters worse, police understandably have real fears when called to a scene of reported domestic violence. The officers do not know what they’ll run into. Perhaps they fear being attacked themselves. They fear making the wrong call if they make no arrest and then they’ll read about it in the newspaper if something bad happens afterwards, so they err on the side of arrest, contrary to exercising discretion based on what they see with their own eyes. 

     In our domestic violence courtrooms, there are of course abused women, real victims, that need special prosecutorial and counseling attention. But as a result of the above, I believe, they and their cases get buried beneath mountains of these other types of cases day after day. Resources get diluted. An already strained prosecution staff has less time to provide services. In many respects, it is the broad scope of the domestic violence statute itself that does a disservice to those women in real need who were the original reasons why the statute was passed in the first place.

     I do not claim to have the perfect solution to this situation but it seems that a few changes would make basic sense. First, do not include fights between siblings, cousins, nieces and nephews among those cases covered by the domestic violence statute. The same holds true between parents and their kids. While such batteries can of course be serious, their dynamics differ from from those suffered by abused women. These other cases can readily be handled not just by the regular misdemeanor and felony criminal courts but also by our abuse and neglect courts when it comes to abused children;  in fact, that’s why such abuse and neglect courts exist, with their own specialized services for those situations. These other cases do not need to use the victim counseling as well as counseling for the offender that are unique to cases of abuse against women.

    And are we to have no logic applied here? If someone makes a claim that is simply not plausible under the given facts, can there be no discretion applied by the police or by the prosecution? Certainly there are gray areas that need to be decided on the side of caution. However, arresting and prosecuting a man upon a claim that he bit someone hard in the face 5 minutes ago, and there are in fact no injuries present of any kind –  is an arrest and prosecution that serves only lawyers, who can then charge that man a fee for legal representation. And I did, discounted given the facts, of course!

     Now, perhaps, you have the answer as to why our domestic violence courts are so crowded day to day, and why such dockets are crowded with cases having nothing to do with common sense or abuse against women.    

    Ending with the beginning – the woman who kicked her cheating man one time in the shin finally had her case dropped after her husband continued to refuse to testify against her. But he did have to go to hearing on the contempt case against him. When I asked the judge whether such a man, after what he had done in public, should now be held in contempt for not wanting to give his wife a criminal conviction, the Judge smiled and shook his head. Four hours of community service, that’s it, the Judge ordered, but for behaving like a jerk at the office party, not for refusing to come to court.

“Addiction Treatment” – What does that mean for the Criminal Defense Lawyer?

Friday, March 18th, 2011

Whether charged with a criminal case in Kane, DuPage, Kendall, DeKalb or any criminal court in any county, when a judge orders someone into drug addiction treatment,  what does “treatment” mean? This is an important consideration for a criminal defense lawyer.

     Criminal defense lawyers should know there are no magic wands to stop drug use, or magic words for that matter. Over the years defending the accused on criminal charges related to drug additiction, I have heard of, and seen in a few clients, a situation in which some dramatic moment occurs in his or her life, and the cycle of drug use suddenly ends. But this is extremely rare. More commonly addicts use and continue to use even in the face of jail or prison time, loss of contact with loved ones including newborn children, loss of work, health, trust, respect and self-respect and, admittedly, in the face of mounting legal fees.

     I’ve experienced a client, after jail, inpatient treatment, an intervention specialist, and incredible family members, use and commit new serious felonies a day after re-entry into a program, losing a significant career, freedom, the opportunity to keep all felonies off his record, and face long-term prison away from a young child. Believe me, after experiencing that one last summer, I was ready to throw my hands in the air and give up on the notion of “treatment.”

     But I can’t. I’ve seen it work, and work often. Besides, the consequences of not trying are clear and deadly.

     As a defense attorney, I always have and will continue to give significant discounts in fees if the voluntary option chosen is treatment. It’s an encouragement, I believe, to help reluctant addicts come up with the courage to face treatment for addiction without force, without sacrificing other choices such as trials and motions that are each person’s constitutional right. This becomes burdensome, but necessary work when a client relapses a second, third, or even more times, and I keep stepping up with the client for minimal or no additional fee. I have to – I know them and their family dynamics too well to stop trying.

     I have asked such people, who have relapsed again, what actually goes on in treatment sessions. What I have learned consists of conversations between therapist and patient that are what you may expect. Discussions intended to scare (usually health, family / work consequences, prison and death). Personal discussions (how did this start, and why). Community discussions (support groups / sponsors). Educational discussions (the truth of addiction, the voice that never goes away completely, but can be made to fade and weaken). Approaches (usually day-at-a-time approaches / 12-step programs / Narcotics Anonymous) so that the patient-addict is not overwhelmed by the major goal to simply “just say no.”

    In an older post I talked about  the incredible success of several of my clients in dealing with addiction. Soon after, sadly, more than half of these persons relapsed, all of them badly. Today, one is lost entirely to long-term prison. A hard, very hard, and sad case. But the others? They’re still in there fighting back. In one case in particular, in Kane County, with incredible help from the Kane Count Rehabilitation Drug Court Team, I got one of my relapsed clients back into inpatient treatment just before the Illinois budget cuts on such treatment occurred (which is another topic for discussion). I simply had to ask each of these clients why they relapsed, yet again, in a court system with prison and other personal consequences hanging over each person’s head.

     What I gathered from each was not so much a failure of the treatment itself, but the fact that they weren’t really listening to the treatment provided. They went into the programs with their minds made up that they would succeed, that the addiction was as good as licked, even before the program started. When talking to those people who made it to the extent of long-term sobriety in which they successfully completed treatment and their probation without re-offending or relapse, I found the common theme from each person as to treatment was as follows: they didn’t know whether they would make it; they didn’t draw any conclusions as to their own success; they feared failure; they had no answers and weren’t even sure of the questions. In conclusion, they were scared.

     It’s interesting that those with fear, at least among the clients I talked to, appeared to have more success reaching sobriety than those who expressed confidence about their success. At least in the world in which I have worked, it wasn’t a lack of motivation on anybody’s part. What seems to have made the difference is the patient’s honest desire to listen to the treatment providers. Those who were scared were more inclined to listen and, more importantly, more likely to follow the treatment provider’s advice. As an example, when the drug addict’s inevitable internal voice to use drugs, to relapse, comes, the scared persons talked about a willingness to immediately call his or her sponsor right away, to work through this building desire to use drugs through conversation, or to actually meet with the sponsor until the desire to use passed. But the confident patients tended to have the go-it-alone, I-can-do-this-without-anybody’s-help approach, thus rejecting treatment’s guidance and coming up with his or her own game plan, usually as to why this just-one-more-time use of the drug can be rationalized; then, since it cannot be rationalized, the use goes full-blown again.

     In a realm such as drug addiction, where a definitive conclusion is dangerous to make, I propose that the question of treatment and what that word means for drug addicts should also focus on the drug addicts themselves. Are they ready for treatment? – is a key question. Moreover – are they willing to listen? And, perhaps most important, are they scared enough to give up all preconceived notions of success so instead they may better absorb what is taught.

     I keep my hopes up for my clients even after relapse. As distasteful as it is, relapse happens, and often does so more than once before recovery is truly obtained. As a criminal defense attorney, I am grateful for this understanding within today’s court system and the drug court system in particular.  

     I’m looking forward to attending a particular drug court graduation ceremony. There’s someone I’m hoping will be there among the other people who have reached meaningful sobriety.

     I have some confidence that this client will make it.

     After all, for the first time in his life, he is scared that he won’t.

Defense Lawyer: Drug Treatment versus Jail

Wednesday, June 16th, 2010

In criminal cases in DuPage, Kendall, and Kane Counties, over the last year I’ve worked with 7 clients facing prison for their criminal charges and two others facing their first felony conviction in which I worked to get them into drug treatment programs instead. Sometimes there were legal issues in which the State acquiesced and sometimes it was a tooth-and-nail battle in court on the criminal case getting the program from the presiding judges. Four of the clients recently contacted me and thankfully to report how well they were doing. One man approaching 50 and facing a minimum 6 years in prison on his criminal case (at a cost of $180,000 taxpayer dollars by the way, give or take) has now been clean for 18 months (the first 6 in county jail, but the rest while out and about) for the first time since his teenaged years. (This was the same gentleman I had to help through the phone company crises I wrote about in a different post. ) The look of pride and health in their eyes are remarkable. While each must recognize his or her addiction forever, this, I believe, proves rehabilitation is not a fantasy in our sentencing system. I am thankful for the opportunity to have represented these clients but commend them and their counselors for their hard work. They accomplished this, not this attorney, and it’s a winning situation for everyone involved. Sadly, one parent of a client reported her son failing badly. I wish all clients will succeed, and I hope this one does eventually too. But to those who thought to contact me on their success – thank you for letting me be a part of this, and I wish you all continued success and a happy life. This, I beleive, should provide hope to those with criminal charges fueled by addiction that recovery can happen no matter how bleak things appear right now.