Kane County Nuggets

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 273 (Duration 9:35)

Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

People v. Valdez, 2016 IL 119860 (September). Episode 272 (Duration 41:18).

The Illinois Supreme Court has reset the obligation on criminal lawyers to inform their clients about immigration consequences of convictions.
Two experienced immigration attorneys walk us through the decision.

Subscribe: iTunes | Google Play | Android | RSS | Direct Download

ITUNES GOOGLE PLAY ANDROID RSS

DIRECT DOWNLOAD

Attorney David Richmond and Attorney Omar Salguero are primarily immigration law attorneys. This made them the perfect guests to help the criminal defense bar slog through these issues.

This 1-Page checklist helps you quickly spot the charges with succinct, clear, and explicit immigration consequences. (Hint: You better advise your client removal or deportation is required. )

David Richmond runs the Latino Immigration & Legal Center in Aurora, Illinois. He concentrates his practice on deportation, removal and other immigration related issues.  David can be reached by phone or email. He is always happy to help other attorneys with immigration questions.

• [email protected]
• (630) 897-5992

Omar Salguero also focuses his law practice on immigration related cases. He has legal offices in DeKalb, Rockford and Aurora, Illinois. He too is always eager to answer questions from civilians and the defense bar.

• [email protected]
• (815) 446-0770

The Illinois Supreme Court has described certain criminal convictions that carry "succinct, clear, and explicit" immigration consequences. For these types of cases defense attorneys have an affirmative obligation to inform their non-citizen clients of dire immigration consequences. Dave and Omar help pinpoint these cases.

Additionally, they provide other tips and pointers for criminal lawyers defending non-citizens.

• People v. Valdez, 2016 IL 119860 (September)
• Padilla v. Kentucky, 559 U.S. 356 (2010)
• 1-Page Immigration Checklist
• Immigrant Defense Project
• American Immigration Lawyers Association (AILA) - Crimmigration 101
• crImmigration Blog by Professor Cesar C. Garcia-Hernandez
• Defending Immigrants Partnership
• Immigrant Legal Resource Center

3:59 -  We begin with a refresher on Padilla v. Kentucky, 559 U.S. 356 (2010). Dave likes to think of Valdez as an evolution of Padilla. 

5:20 - This was the advice from the Padilla attorney that SCOTUS said was entirely ineffective. 

5:30 - Here is the number one difference between Padilla (where counsel was found ineffective) and Valdez (where counsel was not found ineffective). Note: Valdez still did something wrong, but he got away with one because the second prong of the Strickland standard was not met.

6:17 - A quick and easy  way to discover which criminal convictions carry "succinct, clear, and explicit" immigration consequences. These convictions mandate deportation and/or removal. (Hint: Make sure to download the checklist at top or bottom of this page.)

6:41 - You'll be shocked to hear what Dave says about the definition of CIMTs (crimes involving moral turpitude). Nonetheless, there are two critical components that persuade judges they may be looking at a CIMT.

7:36 - This is the final word on whether or not Illinois criminal defense attorneys also have to become experts in immigration law. 

8:19 - How the Valdez attorney kind of dropped the ball on this immigration consequences issue. Good thing the Strickland standard has two prongs. Also, we learn that the "generic" immigration admonishment looks like this. 

9:10 - Why crimes with "succinct, clear, and explicit" immigration consequences require a more definite admonishment from defense counsel. Defense counsel has to step-up in these situations and be more direct about disastrous immigration consequences attached to these types of crimes. (The Good News: the most damning of these charges have been listed and identified as the "aggravated felonies".)

10:28 - Where to find the aggravated felonies in the federal code. Please Note: These sections in the Immigration and Nationality Act and the United States Code are horribly written. Download the 1-Page checklist if you have not done so already. 

11:19 - Do not ignore the 1 year imprisonment requirement attached to some of these aggravated felonies. If the defendant is not sentenced to more than a year of prison for these charges then it's not an "aggravated felony".

11:44 - Did you know not all killings are considered aggravated felonies? Murder, yes. Manslaughter and reckless homicide, no.

11:56 - Don't even mess with drug cases. Even just a "pinch" of cocaine is a big problem for a non-citizen. However, there is a one time "weed" exception.

13:14- What about drug paraphernalia?

14:39 - What should we tell clients when they are charged with an aggravated felony.

15:09 - This is absolutely the very first thing you have to do when you are defending a non-citizen. The second thing is to get an immigration lawyer involved.

16:34 - WARNING: Don't make this common mistake when representing non-citizens. LPR (lawful permanent residents) are still in the immigration process. Even clients with legit papers have to worry about removability & inadmissibility and how a charge can effect these.

20:12 - Common concerns and issues with domestic violence cases. Why (a)(2) is better than (a)(1).

23:13 - Common problems with differred prosecutions, special probations, and second change programs. Why the Kane County Second Chance Program sucks for non-citizens. Why the DuPage and Cook County programs are way better...Is your home county program more like Kane or Cook?

26:23 - Common concerns and issues with DUI charges.

28:52 - The problem with credit for time served & disorderly conduct.

The hard work has already been done for you. To get your hands on the 1-Page Immigration Checklist just click the orange button below.

This 1-Page checklist helps you quickly spot the charges with succinct, clear, and explicit immigration consequences. (Hint: You better advise your client removal or deportation is required. )

People v. Cielak, 2016 IL App (2d) 150944 (December). Episode 271 (Duration 4:38)

Observation period lasted only 19 minutes rather than 20. Is rescission of SSS proper?

People v. Evans, 2016 IL App (1st) 142190 (December). Episode 270 (Duration 7:02)

Murder reversed, step-grandmother improperly excluded from the courtroom constitutes structural error.

As the trial court was about to begin voir dire, it asked why someone was sitting in the gallery.

Defendant’s attorney explained that it was his step-grandmother.

The trial court immediately responded,

“I’m going to ask you to leave and come back on Monday.”

Counsel told the trial court that she had explained to the lady “the rules of decorum,” and that “she is not to speak to any venire person.”

The trial court said “she’s been fine,” but then stated that it would still ask her to leave during jury selection anyway because “we won’t have enough room.”

Counsel then asked if she could be “segregated” from the venire, because “it is a public trial.” The trial court said that there was no “contamination” but would ask her to leave anyway. Counsel objected, properly preserved the issue, and subsequently appealed.

The court stated that it was not prohibiting anyone from attending, but asked the lady to leave because the courtroom had only three rows of seats and 45 potential jurors, and it would be impossible to separate the civilian from the venire to avoid contamination.

The sixth amendment of the United States Constitution (U.S. Const., amend. VI) guarantees the accused the right to a public trial, and this right extends to voir dire of prospective jurors.

A violation of this right falls into the limited category of “structural errors,” which require automatic reversal without the need to show prejudice.

To justify closing a trial proceeding, the court examines:

(i)  whether there exists an overriding interest that is likely to be prejudiced,
(ii) whether the closure is no broader than necessary to protect that interest,
(iii) whether the trial court considered “ ‘reasonable alternatives to closing the proceeding, and
(iv) whether the trial court made adequate findings to support the closure.

Was She Bothering Anyone?

There was not a scintilla of evidence that the step-grandmother was messing with the jurors.

The mere fact that someone might be in close proximity does not raise a meaningful risk of taint to the entire jury pool, as the judge suggested.

There must be a specific threat of jury contamination to meet this standard.

Limited Space

The trial court’s second reason for barring the lady was the limited number of seats available in the courtroom.

This has even less weight than the worry about jury contamination.

Whether 45 potential jurors can sit in the courtroom at one time is solely a matter of logistics and convenience for courtroom personnel—it has no positive effect on the fairness of the trial.

But even in a cramped physical space, trial courts can deal with this limitation in ways that do not burden a defendant’s constitutional rights. The size of a courtroom, or the number of potential jurors who are summoned to a courtroom, do not constitute an “overriding interest.”

Here are some ideas based on common sense:

calling the potential jurors into the room in smaller groups,
asking the lady to stand until a seat became available,
instructing the potential jurors not to interact,
instructing people to “squeeze” together,
bring in additional chairs.

What occurred here is in no way a “trivial” closure.

If, as the Supreme Court has instructed, the right to a public trial extends to voir dire, then this exclusion was a complete denial of that right. To work effectively, it is important that society’s criminal process satisfy the appearance of justice, which can best be provided by allowing people to observe it.

People v. Hunt, 2016 IL App (2d) 140786 (November). Episode 268 (Duration 8:34)

Even the state called the accomplice “a liar” and warned the jury to question her credibility.

Accomplice with serious credibility issues implicates her boyfriend in a robbery. 

Defendant’s girlfriend said he did it, and he asked her to scope out the place before he went in with a mask to rob an apartment manager's office.

However, both the State and the defense argued that the girlfriend had serious credibility issues.

IPI 3.17 on accomplice testimony was not given.

The instruction’s purpose is to warn the jury that the witness might have a strong motivation to provide false testimony for the State in exchange for immunity or some other lenient treatment.

When accomplices testify, courts have found no valid reason for not requesting IPI Criminal 4th No. 3.17.

Accomplice testimony must be cautiously scrutinized, especially considering this case where her plea deal allowed her to avoid the possibility of at least 21 years imprisonment for armed robbery.

Accomplice testimony should be viewed with suspicion and accepted only with great caution, especially if the witness was promised leniency or immunity.

Here the testimony was corroborated by the victim's testimony and by physical evidence.

Items from the robbery were found in the girlfriend’s apartment and defendant had a ring taken taken from the robbery on his person when he was arrested.

The evidence against defendant cannot be characterized as overwhelming, but considering her testimony, along with the corroborating evidence mentioned, a rational trier of fact could have determined that defendant committed the crime beyond a reasonable doubt.

While subject to careful scrutiny, the testimony of an accomplice, whether it is corroborated or uncorroborated, is sufficient to sustain a criminal conviction if it convinces the jury of the defendant’s guilt beyond a reasonable doubt.

Nonetheless, defendant cannot show that he was prejudiced by his counsel’s failure to tender the instruction on accomplice-witness testimony.

However, defendant has failed to sufficiently establish that the results of the trial would have been different had defense counsel tendered the accomplice-witness instruction. 

People v. Casciaro, 2015 IL App (2d) 131291 (September). Episode 267 (Duration 15:19)

The State went out on a limb and charged defendant with a felony murder predicated on intimidation. The real risk was relying on, what has to be, this year’s “worst State’s witness.”

This is the November 2016 Illinois criminal case list podcast rundown. Episode 266 (Duration 25:29) features what has to be the craziest case for 2016. 

Subscribe: iTunes | Google Play | Android | RSS | Direct Download

iTunes Google Play Android RSS

Direct Download

Why read the cases when you can listen?

This is where we quickly and efficiently outline the most important opinions every criminal law practitioner must know about.

Subscribe to the podcast or push play above. Don't forget to download your copy of the case list to peruse the cases when you feel good and ready. Click below to save your PDF copy now.

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Here's a quick snapshot of what's included in the podcast and the November case list:

1. People v. Burgund

The supernatural power of "discernment" coerces  a false confession. Can't make this stuff up. There's jealousy, sex, and a trip to the police station in this one. This has to be the craziest case ever. Oh yea, the legal issue deals with false confessions.  Go to 1:04

2. People v. Staake

Defendant was originally charged with Second Degree Murder. Then the State amended to First Degree Murder. This sneaky little one-two punch is entirely legal. Find out why.  Go to 2:53

3. People v. Bond

Right when you thought you knew everything about extraterritorial traffic stops (Cop from city A stops a car in City B) along comes this case.  Go to 4:12

4. People v. Flournoy

Discovery rules say the defense is entitled to all material information about a case possessed by the prosecution. Wrong! Turns out the surveillance privilege allows the state to hide some pretty important information. The facts can be found here...Go to 5:45

5. People v. Doolan

NEVER EVER NEVER EVER NEVER pick a fight with a man with an enlarged heart. This defendant and his buddies did not follow this advice, and it ended badly for them.  Go to 8:25

6. People v. Teper

Have you heard of the "overdose immunity" defense that can be used to prevent a drug possession charge? Well, it may not matter because this second district case may have just gutted the thing.  Go to 9:44

7. People v. Winchester

When extending your middle finger to an officer and saying “no policia” means lack of consent. When gripping the steering wheel tightly, leaning forward and extremely focused driving means nothing constitutionally significant. When staying in your car 5 minutes too long means...Go to 14:44

8. People v. Brantley

What exactly is the DUI rule when you are driving while taking prescription medication? Can they suspend your driver's license for that? Go to 17:17

9. People v. Hunt

How to win a conviction with absolutely the worst state's witness. She was so bad even the prosecution argued to the jury she was a liar. Go to 19:31

10. Special Bonus...Compare Hunt to People v. Casciaro

This case also featured a pretty bad state's witness, but it was released in September of 2015. Why was this conviction reversed where as the Hunt conviction was allowed? What was the key missing ingredient?  Go to 22:12

The hard work has already been done for you. To get your hands on the November 2016 Illinois criminal case list just click the orange button below.

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

eople v. Burgund, 2016 IL App (5th) 130119 (November). Episode 265 (Duration 22:49)

Predatory convictions and life sentence reversed because defendant was not allowed to use an expert witness on false confessions. 

People v. Teper,2016 IL App (2d) 160063 (November). Episode 264 (Duration 10:51)

Defendant overdosed on heroin, and was slumped over in her car, can she be prosecuted?

Police were notified that defendant was slumped over in her car.

They found her and administered narcan because it looked like a heroine overdose. When she came to they charged with class 4 possession for the items they find in the car with her.

Part of the Drug Act says that,

“A person who is experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section.”

720 ILCS 570/414(c).

However, section (e) says that,

“The limited immunity described in subsections (b) and (c) of this Section shall not be extended if law enforcement has reasonable suspicion or probable cause to detain, arrest, or search the person described in subsection (b) or (c) of this Section for criminal activity and the reasonable suspicion or probable cause is based on information obtained prior to or independent of the individual described in subsection (b) or (c) taking action to seek or obtain emergency medical assistance and not obtained as a direct result of the action of seeking or obtaining emergency medical assistance. Nothing in this Section is intended to interfere with or prevent the investigation, arrest, or prosecution of any person for the delivery or distribution of cannabis, methamphetamine or other controlled substances, drug-induced homicide, or any other crime.”

720 ILCS 570/414(e).

Defendant argued that she was not required to have sought medical assistance for herself, as it would be difficult for anyone experiencing an overdose to seek such assistance, and the statute uses the phrase “seek or otain”.

Both “seek” and “obtain” require affirmative action.

Defendant takes the position that she “obtained” emergency medical assistance when the officers first arrived at the scene, as opposed to when they administered Narcan.

The reviewing court said she was wrong.

The State said that to “seek” requires proactivity, and here defendant was unconscious, so she could not be said to have “sought” emergency medical attention.

However, the definition of “obtain” is “to gain or get (something)” (id.), and here defendant “got” emergency medical attention. The definition further states that the gaining or getting is “usually by effort,” but it does not state or imply that it must be by effort.

Accordingly, defendant “obtained” emergency medical assistance from the police officers, in that they injected her with Narcan and revived her. As such, contrary to the State’s argument, section 414(c) can cover situations in which individuals passively obtain emergency medical assistance.

Reviewing court said defendant got the emergency medical assistance only after the police viewed her, confirmed that she was unresponsive, and saw suspected drugs and drug paraphernalia in the car.

At that point, they believed that she was suffering from a drug overdose, and they provided emergency medical assistance in the form of Narcan.

In other words, the officers obtained evidence of defendant’s drug use and possession by viewing objects in plain sight in the car when they arrived, and they did not acquire the evidence “as a result of” providing defendant with emergency medical assistance.

They said, the officers provided emergency medical assistance as a result of viewing evidence of drug use and possession, not the reverse.

Really? That's a real narrow view of things.

For immunity to apply under section 414(c), the evidence of drug possession must be “acquired as a result of the person seeking or obtaining emergency medical assistance,” which did not occur here.

And even if section 414(c) initially provided defendant with immunity, section 414(e) prohibited the application of that immunity. Because before rendering emergency medical assistance in the form of the Narcan injection, the officers here had probable cause to arrest defendant for unlawful possession of a controlled substance, because they viewed defendant’s condition and saw suspected drugs and drug paraphernalia.

Stated differently, the officers’ probable cause was based on information they acquired before defendant obtained emergency medical assistance from them, and the evidence was not a direct result of defendant obtaining emergency medical assistance. See 720 ILCS 570/414(e).