Posts Tagged ‘“drug case”’

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

Monday, 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.

Drug Charges / First Time Criminal Charge Offenders, non-violent charges- What to do? Often, sadly, it depends on the County.

Thursday, July 14th, 2011

As a criminal defense attorney and drug defense lawyer, I was handling a client’s criminal charge – a cannabis case, at a sentencing hearing out in Kendall County (Oswego) a short time ago when an experienced felony prosecutor hinted that perhaps the criminal defense lawyer (which would be me) was ineffective for not making an application on the criminal charges  to the TASC program. That accusation made this criminal defense attorney nearly fall out of my legal briefs, especially since it was being made in Kendall County.

     In Kendall county, there is no Drug Court program for drug addicts and their drug charges or drug addiction related criminal charges, despite the push for such drug treatment courts state and nation wide, and there is no Second Chance program for first-time offenders charged with criminal cases in Kendall County, also despite the push for one.

     Regarding the criminal drug charge discussed at the start here, when it came time to respond to the State’s argument before the Judge on behalf of my client, I pointed out that had my client’s drug charge, marijuana possession, been in Kane County, DeKalb County, DuPage County, Cook county, and all those counties near and around Kendall county, my client would have been offered and would have taken a Drug Court program. But instead he had the misfortune of tripping over Kendall County’s borders with his cannabis charge, where no such program exists despite proven effectiveness. Further, that if the TASC program (a drug counseling program pre-dating drug courts) had been so successful on its own, then why was there a need for the State Legislature of Illinois to create Drug Courts? Even worse, the State here wouldn’t offer TASC in the first place. Rather I had on my own directed my client some time before, and the client had wisely accepted the need, to attend Aurora Il’s Breaking Free program, and I had asked the client to call me every week on his progress. Fortunately, the client followed through and was able to present a good report from Aurora’s Breaking Free program. As a result, regarding the drug charges, again, cannabis, the Judge, who was quite familiar with Kane County’s successful drug court, sentenced my client to probation instead of the 3 years the Kendall county prosecutor had asked for – at about $24,000 tax payer dollars a year – for cannabis possession!

        Why Kendall county does not have a Drug Court is unfathomable, just by the example given above. At present, the Kane County Drug Court does a fantastic job. Attorneys, both private and public defenders, are made welcome at their staff meetings. The members of the staff listen, allow the attorneys to present our concerns and options. Kane County in particular has come up with creative options. Recently, two of my clients, who were failing, were given creative choices, and both are doing quite well now, although of course only time will tell. Kane County’s Drug Court staff, and its Judge, go out of their way to advocate for the result we all want – recovery from addiction. The Kane County Drug Court Judge and staff continue to hone their approach by furthering their knowledge through effective seminars and hands-on approaches and new techniques. Although I have less experience with DeKalb’s and DuPage Counties’ Drug Courts, I know enough to see the care involved. I have success stories in all three counties, and, sadly, some failures, but the effort is truly there. Kendall County? – well, their policy requires me to be creative as a criminal defense lawyer, and thankfully the judges understand treatment as being preferred over incarceration. The fact that Drug Court programs provide close supervision, require the probationer to report often for drug tests and updates, and be active in their own recovery at all times – you’d think Drug Courts would be right up Kendall County’s generally tough attitude toward addicted criminal defendants.

     A similar situation arises when dealing with first time offenders of non-violent crimes. Kane County had the highly effective Pre-Trial Diversion Program when I became an assistant public defender there in 1987, and later developed under expert hands into the Second Chance Program. DeKalb County has followed suit in its own way, and now DuPage County is looking into it in all earnest. Kendall County – not even on the radar screen despite requests to check out Kane County’s high success rate. And why is that? Let’s face it – we all can make a serious mistake, even a criminal mistake, once in our lives. And if it is a non-violent event by a first-timer, is it really in anyone’s best interest to weigh that type of person down with a criminal conviction for the rest of his or her life?

     Under the Second Chance concept, victims get restitution nearly right away in most cases. The accused, to be accepted into the program, must undergo scrutiny by members of society, and truly face remorse and make his or her apologies. Costs to the court system and the overload of cases and charges are lowered even as the accused gives to society by performing 100 to 200 community services hours at approved and monitored locations. If successful, after one to two years in the program, the accused sees his or her charge dismissed and becomes eligible for expungement of criminal charges right away. If the person messes up again – there is no second bite at the Second Chance program.

     So where is the down-side, Kendall County, whether it’s the victim, the accused, or society? Well, there isn’t one. The Second Chance program over the years has saved many of my clients’ college careers, and so many have gone on to do wonderful things with their lives, including heading charitable organizations and bringing relief to the impoverished in other countries as well as in the US. I would ask the leadership of Kendall County’s State’s Attorney’s Office – even outside the realm of criminal behavior, haven’t we all done something that has deeply disappointed a friend, colleague, or loved one in which we received a second chance to prove we were sorry?

     To first-time, non-violent offenders, and to the drug addict, as well as to their loved ones, you can see that where a crime happens is often more important than anything else in terms of your options. I hope that the example of the Kane County Drug Court, and its Second Chance program, and the Drug Courts in DuPage, DeKalb, Cook, and other counties, as well as their second chance programs, persuade Kendall County leadership to change their collective mind on this. After all – many of us have children who may, no matter how hard we try as parents to do right by our kids, while growing up through their teen years and early 20s, may make a mistake of a criminal nature, or be in need of fighting off an addiction.  

     Whose policies would you want your own children subjected to? Just a thought, Kendall County. The right answer is obvious.

Criminal Defense Lawyer and Drug Charges: Keeping the Mind focused on Hearts of Hope

Wednesday, May 11th, 2011

Dear Readers: Regarding drug charges and addiction, a link to Hearts of Hope is provided at the end of this blog entry.

     When the new criminal charge comes into my office, and the client has no interest in fighting a criminal drug charge, for instance, as a drug defense lawyer I tell the new criminal defense  client and his or her family that I do not want the client’s repeat business. Although this hardly seems effective as a business model, when it comes to defending drug cases and drug charges, it absolutely is the only model that makes sense. As a criminal defense lawyer, I always look over every page in the criminal case to look for anything and everything that will help my client charged in a criminal case. Motions to quash regarding an illegal search, errors in charging the criminal case, motions to dismiss the criminal charge – the client’s right to know all information and opportunities in his or her criminal case does not change simply because the client confides his or her drug or alcohol addiction to me. In fact, as a criminal defense lawyer, I know that I can often take advantage of such errors in criminal cases to my clients advantage, allowing them the freedon and opportunity to get drug treatment as opposed to incarceration without any hope for drug addiction treatment.

     Look, if a former drug client wants to hire me again, of course I’ll do it, and charge the legal fee. But what does this mean? It means that the client, despite the prior case or cases, has continued on in the world of drugs. Of course I presume each client innocent, as I should. But even if a person is innocent in fact, a new arrest may mean that the person has been traveling in circles that allows a false accusation to be charged. And if the person is in fact not innocent, then the addiction has continued. Whether the first case resulted in an outright not guilty, a motion to quash being granted, or some other form of dismissal, or if the person negotiated probation as a result –  with treatment – well, despite the successful surgery, the drug-addicted client has ripped the stitches wide open again because the addiction continues.

     In trying to improve my understanding of what people go through combating addiction, I had the pleasure of recently attending a Hearts of Hope meeting in Geneva, IL, in Kane County, a couple miles east of the Kane County Judicial Center. I cannot reveal names or even general details, because of promised confidentiality, but I can say that Hearts of Hope is one amazing organization, one that every criminal defense attorney in Aurora, Elgin, Batavia, Geneva, St. Charles, all of Kane County or from anywhere for that matter, should attend. Although open to recovering addicts, the focus seems to be on the parents of addicts. I saw the pain and frustration upon the faces there, and the strain and love in their voices. After all, these are the mothers and fathers who raised babies into toddlers, toddlers into teens.  And for each loving parent, it is so harshly devastating to witness that beautiful child succumb to addiction along with addiction’s impact on the addict’s life and health, and that of the loved ones around them.

     The session showed a helping hand of hope, a real heart of hope, a name this group well deserves. Each parent not only seeks comfort among those who understand because they too have been living the pain of addiction upon a child, but also each parent searches for answers in a realm where there just doesn’t seem to be a concrete answer. There are also parents there whose children have maintained recovery for a long time, providing an even bigger heart of hope. As a criminal defense attorney, I wanted to see, hear, and learn from such parents. Hearts of Hope provides a wealth of information and honest facts about real addiction histories. 

     It is clear that the age-old adage of the addict not only recognizing he or she is an addict, but also wanting help, remains true. Forcing someone without these basic steps just won’t work. But even with addicts receiving inpatient treatment for 3, 6, even more than 12 months, relapse happens, and sometimes quickly after release from inpatient treatment.  When I pressed for an answer why, what did the addicted person say was the reason to relapse, so hard and so soon? –  I found that there was no definitive answer to be given.

     In my March 18, 2011, post, I wrote about the need for the drug addict to be genuinely scared before treatment will stand a chance to work. Indeed even though an addict has seen death of friends due to illegal drugs, or loss of child custody, loss of employment, college, career, a place to live, the trust of family, or may have suffered a near-death overdose themselves – far too often, none of what would keep the rest of us straight seems to be enough in the face of addiction, especially heroin. It’s as though, when relapse happens, it’s because the addict’s mind at the point of relapse has emptied of every other thought, and the logical reasons not to relapse are at least muted. The person simply wants the drug. Maybe there’s a plan, doomed form the start, to sneak a hit one more time, or a plot to work around drug testing. But such plots and plans always fail at some point. Always.

     I still could be wrong, but my gathering with Hearts of Hope strengthened my belief that the addict seeking recovery has to have made up his or her mind to be scared of the addiction every single day. To make up the decision to be scared of the drug every single moment of the day. In this way, a decision is made, and made every day, before temptation arises and before the inner voice to use begins to talk. Is this the answer, or even part of the answer? I wish I knew for sure. I wish that each and every parent could have his or her son or daughter back the way they were before addiction took over the child’s life. I am convinced, however, that Hearts of Hope is invaluable for parents seeking personal relief from their own pain, for persons seeking information, as the people there provide a wealth of valuable information. And it’s also a valuable group for the recovered addict and the parents of the recovered addict to attend, to provide their own Hearts of Hope and strengthen their own continuing recovery.

     In our criminal courts, no lawyer or judge should deny a defendant his or her statutory or constitutional rights, nor provide each person anything short of  full information and options on any given case. To do otherwise not only would violate the principles lawyers and judges are sworn by oath to uphold upon licensing, but also would serve to cause an addict, typically suspicious of authority to begin with, to deeply mistrust or turn away from a court system if that system’s honesty is suspect. However, that certainly does not mean treatment is inconsistent with criminal defense. Even if litigation is the addicted client’s choice, with an eye toward victory for that case, the criminal defense attorney should provide the whole truth, that victory will be for that case only, and not for the rest of the addict’s life, unless recovery from addiction is fought for and won.

     I hope each of you who have honored me by reading this blog entry will also link (provided below) to the Hearts of Hope web site, and then pass it on to your friends and family. Sadly, I think we all know someone, or know someone who knows someone, who is hurting because of addiction. Hearts of Hope – it’s not the only organization out there, but it is special and powerful, and will in turn link you to other, helpful organizations. The cost?

    Hearts of Hope is both free and priceless. Please click on –  http://www.heartsofhope.net/

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.

Destroyed Evidence in North Aurora: A Drug Case Legacy of Case Dismissed

Wednesday, September 2nd, 2009

In North Aurora, Illinois, a young man named Newberry was arrested while in school for possessing suspected drugs that a preliminary field test indicated was not an illegal drug. He was originally charged with possesion with intent to deliver a look-alike drug. A probationable felony. Several efforts were made to cause the State to see this young man in a different light, to salvage him and keep him from having a felony criminal conviction at such a young age. There were unique facts about him that made this request reasonable.

The prosecution’s response was to up the charges to a Class X felony! – a minimum of 6 years in prison for this 18-year-old. It seems that even though the field test was negative for illegal drugs, the crime lab test claimed the substance was cocaine, and in a Class X felony amount. But issues of what in the world was going on with the crime lab versus a more general field test never came to pass because, in the meantime – the North Aurora Police had thrown the alleged drugs away!

Fortunately, it was the defense lawyer’s practice to always get a court order to view evidence, and in this case, the evidence was gone.

While there was some case law on the subject at the time, there was very little from Illinois on what happens when the body of the crime itself – in this case the alleged drugs – was destroyed by the government. The defense attorney went for the jugular – a motion to dismiss the case outright.

The approach taken dealt with the rules of discovery and Supreme Court Rules, due process, the right to confront not just witnesses but the evidence itself, and the right to independent testing. After heated debate, the trial court granted the defense attorney’s motion and the case was dismissed.

The Apellate Court agreed and – The Supreme Court agreed – with the trial court’s decision. This Supreme Court decision, People v. Newberry, was published in 1995, 5 years after the whole ordeal began for this young man.

Why bring up the 1995 case now? Because over the last two weeks, two other attorneys have come up to me to thank me for that published opinion because it has caused judges to grant motions to dismiss in their clients’ cases in August 2009. And although other decisions from the Appellate Court have since ruled the same way, my Newberry case is where it all began as a ruling on destroyed evidence from the Illinois Supreme Court.

But it all really began as one of my first felony cases back in 1990, as a decision I made to check the evidence and assume nothing. The fact that, 19 years later, this has made a difference for me and other defense attorneys in representing their clients, means a lot. For Newberry himself, it meant freedom from prison and no criminal history.

While some may argue that he “got away with it” the fact remains that due process prevailed, as it should have prevailed, and also that since that time, this young man has never returned to the criminal justice system.