Nov. 11, 2009
Recently elected Cook County
State's Attorney Anita
Alvarez moves against journalism students
In an alarming
stab into the nexus of the public right to know and, let's face it, the State's
craven need to protect it's institutional reputation Cook
County prosecutors have issued subpoenas to Northwestern professor David
Protess seeking his students' grades, his syllabus and their private e-mails.
Prosecutors claim since the team which as wrecked more than one case for the
office is made up of students, they may have been under pressure to prove their
case to get a good grade.
At a time when so-called mainstream media is flailing for
relevance as it fails to address the
very concerns it was originally tasked with, an alternative voice pops
out with some potentially embarrassing facts and it's whack a mole time.
I
hope these kids feel flattered. They should be. But I'll bet they
feel intimidated and alone. I'll bet that has a lot to do with why these
subpoenas were filed in the first place.
Having watched this
particular program at Northwestern
University with
admiration for years I am confident that they have good representation
already in place. Ultimately I doubt the subpoenas will be allowed by the
judge. But in the meantime, the message has been sent. Strangely, I
myself was a college journalist 20 years ago, who almost to the day, was
dragged into a criminal case due to my journalism work. My case turned out
fine. But it really soured me on lawyers for a long time. Guess I
got over it.
As a long time social
worker, former public defender and general supporter of the less fortunate I
say to these students - Congrats! You have now learned a lesson in serving the
poor. You will have your motives questioned. They can't fathom that you really
are at worst, merely providing an alternative text to their established
narrative. That somehow it is your own
social advancement that spurs you on as opposed to mere altruism or your
budding professionalism.
Truth stings those
engrossed in creating easy answers.
July 30, 2009
Cook County Votes to Decriminalize Possession of Small Amounts of Marijuana
Cook County recently voted to decriminalize
possession of small amounts of marijuana. I agree with Mayor Daley that
having a small amount of marijuana has largely been informally decriminalized in
Cook
County. Many cases don't
proceed past one or two court dates. But, I think Cook County should make it official and stop
impounding cars as well.
Taking someone's car in
relation to a small amount of marijuana to stuff the county's coffers imposes
financial hardship and emotional stress on people that is simply not fair.
A Republican who voted
against the measure, Commissioner Gregg Goslin, said any laws to decriminalize
pot should be done by the state. I believe that the vast majority of
marijuana arrests are made in Cook
County and the Board should take the
lead for the rest of Illinois.
Even though I predict
that the decriminalization of the possession of small amounts of marijuana will
probably cause me to lose some business as a result, I think that marijuana
arrests disproportionately impact minority youth and decriminalization will save
the county millions of dollars.
June 23, 2009
Criminal Defense: Guns Rights vs. States Rights
Recently the 7th Circuit, which covers Illinois upheld the Chicago and Oak Park gun bans. I think this decision caught a lot of casual court watchers off guard. Many people had taken the Supreme Court’s decision striking down Washington D.C.’s total ban in the Heller decision to be the final word. But the 7th Circuit made an obvious point, does the Second Amendment, which clearly applies to Federal action, also apply to the States or municipalities?
It is not such a simple matter to assume that all aspects of the Federal Constitution directly apply to other entities. How often have you heard people pop off to another person “you can’t tell me to be quiet, I have freedom of speech.” The speaker of such nonsense fails to appreciate that there is a distinction in the Federal Constitution between limits on the Federal Government and the States or other government entities.
Many constitutional rights we take for granted did not apply to the States until the 14th Amendment was passed following the Civil War and subsequent court decisions specifically stated that certain rights enumerated in the Federal Constitution also limit the States’ power through the concept of “incorporation.” Prior to that, the 5th Amendment required at least procedural due process for federal action but was largely seen as silent in regard to the States.
So an inescapable irony in the current gun rights cases is that historically the most vocal supporters of gun rights have been found on the paleo-conservation side of most issues where most are “states’ rights” advocates and generally opposed to federalism. Despite this basic organizing principle, their strongest argument has appeared to be a federalist argument that the 2nd Amendment trumps local or State laws. The U.S. Supreme Court has, in my opinion, ruled clearly and directly on the applicability of the 2nd Amendment to federal action.
What is the prediction? Who can say, there are a variety of ways that judges analyze incorporation questions. A real spectrum of positions are currently represented on the Court. The new nominee, judge Sonia Sotomayor, has ruled in a similar manner on a similar case previously, basically stating that the Supreme Court needs to answer this question. I guess we’ll soon see how she answers her own question.
Just watch the court case uphold the 7th Circuit and assert that the rights enumerated under the 2nd Amendment are not incorporated, that of States’ Rights control, that Federalism does not apply. Dissonance will ensue and the irrational patchwork of gun regulations across the country will remain in place.
June 18, 2009
Why do the Criminal Defense Lawyers go First?
Economics, that's why. In order to make a living as a trial attorney in the private sector, criminal defense and traffic attorneys often have to take on multiple court appearances on any given day. Most appearances take but minutes or seconds before the judge, so it becomes a matter of getting to your first appearance of the day as early as possible and having things sorted out before the case is actually called. Missing parties (cops, witnesses, probation officers, etc.) or documents can jam up the proceedings and cause delay.
Consequently, especially in heavy traffic rooms, people with attorneys get called first. This is not done merely to disrespect the non-represented, but out of recognition that the attorneys often have to be somewhere else, often right now.
With this in mind, in my last two appearances at two different Cook County traffic rooms, it was the judge that was missing. First the judge in my courtroom for a DUI defense left the bench for about an hour mid-call to cover another room where the judge failed to show up for the day. Consequently, I was unable to make my next appearance of the day in a timely manner. Second, less than a week later, in another Cook County Courthouse we all waited over an hour for them to find a judge to start the call. Fortunately on this day I had nothing else scheduled. In both cases the assembled citizens did get restless as time dragged on. Fortunately, in both cases the Sheriffs assigned were very calm and respectful, consequently we got through it without incident or unnecessary tension in the room. Regular court watchers/participants will know exactly what I am talking about - the powermad/arbitrary bailiff who has no "off" switch, and is all too common in Cook County courtrooms. We know these guys and gals. They invariably make bad situations worse and gratuitously loose waves of intimidation on the assembled citizens. Really helps improve the bonds between the people and their government. However, in both of the situations noted above, the courtroom staff were actually nice and tried to keep the people informed about what was going on rather than just barking orders.
The rules of supply and demand still apply in the public sector to an extent. The number of hours a day a judge can hear cases is finite. Like other large organizations, there are some judges that shoulder most of work day to day. Those that are working hard to move their call while giving parties full opportunities to present their cases are easily identified, recognized and appreciated by those of us who also show up every day.
So if your criminal defense attorney says he's got another case the same day, it's not that he or she doesn't care about your case. There are only so many work days in a year and only so many opportunities to be heard. Sometimes there is some necessary juggling. With this being the case the lawyers often need to be the first act in the daily circus.
June 5, 2009
How a Sagging Economy Impacts Criminal Defense Law
Once again I have to respond to another cocktail party question. It goes like this: "So with the economy like it is, I bet you are getting a lot more business?" The insinuation being that in tough economic times more people turn to crime to get by.
While the underground economy in general grows in any society during times of economic stress, I'm not so sure that directly translates into more business for me. I'm not alone in the belief that regular people don't just wake up one day and embark on a life of crime due to new financial difficulties. I think it's more likely that most thieves (which is who we are talking about) go about it as a vocation. In other words, theft is their job, they have been doing it for years regardless of their current financial situation or other employment. What seems more likely, and some law enforcement friends of mine have suggested, is that regular people under financial strain are now more likely to purchase goods of questionable origin. The result being that there is more demand for hot goods and the professional thieves, burglars, pilferers and shoplifters just increase their activity in response. I think it's more appropriate to consider the recent parallel increase in parking and ordinance enforcement by municipalities throughout Cook County as a parallel development.
In contrast, many of my fellow criminal defense attorneys have noted a drop in traffic cases, especially in Chicago. This might be due to a moral crisis in the Chicago Police Department and in effect an informal work slow down or form of ad-hoc protest by beat officers. Murders in Chicago seem up as well, but there are so many variables in analyzing this trend that I hesitate to try to explain it.
What has definitely dropped off is divorces. There has been a jarring, steep decline in new filings noted by most of my colleagues who practice in this area. Are people just riding it out, waiting for improved economic conditions before making the leap? Divorce is expensive and has been the ruin of families. If people are staying together out of financial concerns despite the collapse of their relationship, we may soon see an increase in domestic abuse and order-of-protection side of my business. Sad, but likely.
March 19, 2009
Jurors or Criminal Defense Attorneys?
Judges and lawyers are complaining that jurors are using social networking sites like Twitter or search engines like Google to conduct their own investigations during trials, but independent “research” has been happening since the dawn of cell phones.
Many years ago during a DUI defense jury trial, my client testified quite precisely and accurately about the direction he was traveling and a unique aspect of the particular street he was driving on as the police approached him. In contrast, the police officers’ testimony about the street and details was confused. At least one juror apparently took it upon herself to call her husband during a break for his opinion on the piece of street in question.
A juror actively seeking out un-sworn, unexamined and effectively un-sourced evidence, which she certainly shared with her fellow jurors, tainted the proceedings to say the least. As a result, the jurors found themselves on the stand. Awkward and uncomfortable for all involved. Some of these jurors now found themselves the subject of a possible criminal investigation. The juror accused could have been arrested for contempt of court.
Now, it is common practice throughout the land that jurors’ electronics of all kinds are held by the Sheriff until the jury has completed their deliberations and ruled or in the event of an emergency. Some courthouses don’t even allow electronic devices in the building at all. Warning signs are prominent in any courthouse.
The electronic landscape continues to evolve, but my advice for jurors and all other vistors to that place we call “Court” is quite old-fashioned-listen to what the judge instructs you to do. He or she and the other actors in the court take this all quite seriously, you should too. Cleanest advice-leave the expensive, fancy, electric tether at home or you could get a rather Spartan pair for free courtesy of the sheriff and find yourself really out of touch.
March 18, 2009
DUI Defense: To Blow or Not to Blow
Many people do not realize when the police ask them to blow in the machine they do have the right to refuse. However, years ago law enforcement figured out they needed a way to “encourage” suspected DUI drivers to cooperate and in effect provide evidence against themselves.
Here in Illinois, like most states, we have the Summary Suspension regime. Basically, if you blow and you had been drinking, by blowing, you may have just handed the prosecution their best piece of evidence. If you refuse, the case in chief will likely devolve into mere credibility and what are often rather subjective observations by the officer. By declining to blow, you may retain some chance of prevailing at trial. However, the suspension of your license will be significantly increased if you refuse.
They want you to blow! Sure you will get a shorter period of suspension if you cooperate and blow over than if you had simply refused. But, you have just thrown away any chance of winning the trial. Judges are increasingly giving convictions for even first offenders. In Illinois, conviction = revocation. So, cooperate and blow to shorten your Summary Suspension, but hand the state a conviction and a potential permanent loss of driving privileges.
On the other hand if the driver has had nothing to drink at all, be fearless, ask for the machine yourself. Blow less than .08 and you should be getting your car keys and an apology rather than a court date.
March 14, 2009
Lindsay Lohan Needs a Criminal Defense Attorney
Lindsay Lohan needs a good Criminal Defense attorney. She is wanted for arrest in relation to her 2007 DUI and hit-and-run case. Let’s face it. Ms. Lohan is easily recognizable. Someone in her situation should contact her lawyer immediately so that lawyer can arrange a peaceful resolution. The last thing anyone needs is to be arrested on the street. We would all prefer to avoid such embarrassment and drama. On the other hand, Ms. Lohan may prefer it go that way. Drama and trauma maybe be good in her line of work, but I don’t find that’s the case with most of my clients.
March 11, 2009
Criminal Defense Attorney to Dixon: Eat Oatmeal
Even though she refused to testify at her DUI defense hearing this week, like anyone else accused of a DUI, Chicago Alderman Sharon Dixon, will have to blow into a breathalyzer before starting her car if she wants to drive in the near future. And, before blowing, Dixon should layoff the bread, perfume and mouth wash. I attended a seminar this weekend where Donald J. Ramsell explained a major flaw in the design. The devices detect fermentation. The problem is that liquor isn’t the only fermented sugar in our lives. If Dixon gobbles a giant bagel before blowing into the machine, she may have to hail a cab. So, maybe Dixon should stick with oatmeal during these difficult times.
DISCLAIMER: Nothing in this site is intended to constitute legal advice. It is but musings and random thoughts from a practicing attorney. If you have a legal question or situation seek out a competent attorney who has experience in the area of law applicable. Use common sense people - Web sites are never a substitute for genuine legal research and the direct advice of a fully informed and competent attorney familiar with the particular subject matter.
