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009 Ineffective Assistance of Counsel for Following the Code
This defense attorney was found to have provided ineffective assistance of counsel for errors with jury instructions for the charge of possession of defaced firearm.
http://illinoiscaselaw.com/ineffective-assistance-of-counsel-during-jury-instructions/
The Charge
Illinois Compiled Statutes Criminal Code section 720 ILCS 5/24/5(b) http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K24-5 provides that -
“[a] person who possesses any firearm upon which any such importer’s or manufacturer’s serial number has been changed, altered, removed or obliterated commits a Class 3 felony.”
As you may have noticed, this crime does not contain a mental state. The legislators actually took it out on purpose!
The Courts
Illinois courts have said, “Look, we know the State lawmakers have taken out the the ‘knowledge’ requirement from this law, but that is dumb and there has to be a required mental state.”
They did not exactly say it that way, but in their rulings they have included a “knowing” mental state in that crime applied to every element.
Jury Instructions
There are no recommended jury instructions for this crime. Attorneys like recommended instructions because it means no reversible error.
When we have to draft our own instructions we know that “tracking the code” is a safe bet to avoid error. The problem with “tracking the code” for possession of a firearm with defaced identification marks is that the code there is wrong.
Ineffective Assistance of Counsel
The jury instructions in this case did not make it clear that the knowledge requirement also applied to the defaced identification marks. This means that the instructions needed to make it clear that the jury had to find that the charged defendant knew the gun in his possession had a defaced identification.
The instructions in this case did not do that.
The defense attorney was found to be ineffective for allowing those instructions to go through. We all know however, that despite the legal finding in this case. All the attorneys, including the court, have a responsibility to insure that correct legal instructions are create for the jury.
Yes, the legal conclusion was “ineffective assistance of DEFENSE counsel”. But everyone had a slip up in this case.
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By Samuel Partida, Jr.
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This defense attorney was found to have provided ineffective assistance of counsel for errors with jury instructions for the charge of possession of defaced firearm.
http://illinoiscaselaw.com/ineffective-assistance-of-counsel-during-jury-instructions/
The Charge
Illinois Compiled Statutes Criminal Code section 720 ILCS 5/24/5(b) http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K24-5 provides that -
“[a] person who possesses any firearm upon which any such importer’s or manufacturer’s serial number has been changed, altered, removed or obliterated commits a Class 3 felony.”
As you may have noticed, this crime does not contain a mental state. The legislators actually took it out on purpose!
The Courts
Illinois courts have said, “Look, we know the State lawmakers have taken out the the ‘knowledge’ requirement from this law, but that is dumb and there has to be a required mental state.”
They did not exactly say it that way, but in their rulings they have included a “knowing” mental state in that crime applied to every element.
Jury Instructions
There are no recommended jury instructions for this crime. Attorneys like recommended instructions because it means no reversible error.
When we have to draft our own instructions we know that “tracking the code” is a safe bet to avoid error. The problem with “tracking the code” for possession of a firearm with defaced identification marks is that the code there is wrong.
Ineffective Assistance of Counsel
The jury instructions in this case did not make it clear that the knowledge requirement also applied to the defaced identification marks. This means that the instructions needed to make it clear that the jury had to find that the charged defendant knew the gun in his possession had a defaced identification.
The instructions in this case did not do that.
The defense attorney was found to be ineffective for allowing those instructions to go through. We all know however, that despite the legal finding in this case. All the attorneys, including the court, have a responsibility to insure that correct legal instructions are create for the jury.
Yes, the legal conclusion was “ineffective assistance of DEFENSE counsel”. But everyone had a slip up in this case.