Kane County Nuggets

People v. Buckhanan,2016 IL App (1st) 131097 (September). Episode 244 (Duration 8:41).

The State inappropriately moved to disqualify the defendant's chosen attorney because the attorneys father represented one of the state's witnesses.

Defendant was accused of a murder. His girlfriend was being squeezed by the police she hired her own lawyer.

The state believed she had information concerning Defendant's attempted flight the day after the murder. Her attorney was present with her when she gave a statement to the police and he was representing her when she testified before the grand jury.

the State told the judge that it intended to use the girlfriend's testimony regarding her conversation with Defendant the day after the murder to show that he knew he was wanted in a homicide investigation, thus explaining his abrupt departure.

When the defendant was arrested his attorney was the son of his girlfriend's attorney.

The State argued that Junior should be disqualified for two reasons:

First, it asserted that, through his father, Junior had access to confidential information about Defendant's girlfriend that would give the defense an unfair advantage;

Second, it argued that if the jury learned Junior’s father represented a State witness, it would create an appearance of impropriety.

Junior responded by pointing out that both he and his father were solo practitioners and had never worked in partnership with each other.

His father had never disclosed to him any confidential information regarding his client's girlfriend. Junior also challenged the basis for the State’s disqualification motion by pointing out that her statement to police was not inconsistent with her grand jury testimony.

Junior had represented defendant in the past in unrelated issues.

Senior had represented the girlfriend in the past in unrelated issues.

Based on the possibility that Junior would call Senior to testify regarding that statement, the court believed there was a serious potential for conflict.

The court found that Junior’s continued representation of defendant could impact the State’s right to a fair trial, since he could potentially access confidential information about the girlfriend that would give the defense an unfair advantage.

It also found that there was a risk of the appearance of impropriety if the jury were to find out that the father of the defendant’s lawyer represented one of the State’s witnesses.

However, the sixth amendment provides that a defendant in a criminal prosecution has a right to the assistance of counsel. U.S. Const., amend. VI. As part of this right, there is a presumption in favor of defendant’s counsel of choice.

In Illinois, a two-part test governs State challenges to the defendant’s counsel of choice.

First, the court must determine whether defense counsel has “a specific professional obligation that actually does conflict or has a serious potential to conflict with defendant’s interests.”

If the answer is yes, then the court must determine whether the interests threatened by that conflict are weighty enough to overcome the presumption in favor of defendant’s counsel of choice.

In weighing the interests, courts consider the likelihood that a conflict will actually occur, since “a conflict that would seriously undermine counsel’s effectiveness is not a basis for disqualification if it has little likelihood of occurring.

Courts also frequently consider…

(1) The defendant’s interest in having the undivided loyalty of counsel
(2) The State’s right to a fair trial in which defense counsel acts ethically and does not use confidential information to attack a State’s witness
(3) The appearance of impropriety should the jury learn of the conflict, and
(4) The probability that continued representation by counsel of choice will provide grounds for overturning a conviction.

The reviewing court found that Senior and Junior were not formally associated in a law firm. But it was at least arguable that they constitute a firm under Rule 1.0, given their closeness of their professional relationship.

They acted as cocounsel in various criminal matters, shared office space, and Senior covered for Junior in a number of court appearances in this case.

Nonetheless, it said that the interests threatened by that potential for conflict are not enough to overcome the constitutional presumption in favor of Defendant's counsel of choice.

The appellate court said that the state's motion to disqualify counsel came on the eve of trial and was completely meritless because the witness never contradicted herself.

What the prosecution didn't tell the judge was that they had other abundant evidence of defendant's flight in their possession.

The trial court’s disqualification order violated Defendant's sixth amendment right to choose his own counsel. This was structural error not subject to harmless-error review.

 Reversed and remanded. 

People v. Tate, 2016 IL App (1st) 140598 (September). Episode 243 (Duration 2:43).

Aggravated robbery conviction is reversed after a bench trial and an SOJ violation.

People v. Simmons, 2016 IL App (1st) 131300 (September). Episode 245 (Duration 9:10).

Trial judge easily dismisses shoddy firearm expert testimony and sustains life sentence in this murder case.

How to Admit An Expert Witness And Exclude An Unreliable One
Expert Witnesses Under Higher Scrutiny
Expert Witness Defined by Marisa Tomei from My Cousin Vinny is Credible

Defendant was proven guilty beyond a reasonable doubt, where the three eyewitnesses identifications of defendant as the shooter bore sufficient indicia of reliability and were corroborated by firearms evidence linking defendant to the crime.

The trial court did not abuse its discretion in admitting the testimony of the State’s firearms identification expert where the deficiencies in his testimony merely affected its weight, not its admissibility. This court respectfully disagreed with People v. Safford, 392 Ill. App. 3d 212 (2009), as well as the body of appellate case law that has developed under Safford, on the question of the appropriate standard of review of the sufficiency of the foundation for an expert’s opinion.

A witness may be qualified to testify as an expert “by knowledge, skill, experience, training, or education.” Ill. R. Evid. 702.

Along with establishing an expert’s credentials, “[t]he admission of expert testimony requires the proponent to lay an adequate foundation establishing that the information on which the expert bases her opinion is reliable.”

And to determine whether that information is reliable, the court must ask whether it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Ill. R. Evid. 703.

“If a proper foundation has been laid, the expert’s testimony is admissible, but the weight to be assigned to that testimony is for the jury to determine.”

Defendant notes that, like the expert in Safford, the State's firearm expert simply testified to the process he uses to compare bullets and his ultimate conclusion that the bullets matched.

He noted that the class characteristics of the bullet matched but could not identify any of the individual characteristics that he found to be comparable between the two bullets. And, as the State's firearm expert conceded, the individual characteristics of two bullets are what enables him to determine whether two bullets match; the class characteristics alone cannot establish a match.

The reviewing court agreed with defendant that the State's firearm expert testimony was, to say the least, sparse, it did not agree that the defects in his testimony rendered it inadmissible.

The basis for a witness’ opinion generally does not affect his standing as an expert; such matters go only to the weight of the evidence.

The weight to be assigned to an expert opinion is for the jury to determine in light of the expert’s credentials and the factual basis of his opinion. Although the State's firearm expert did not explain what individual characteristics he saw that led him to conclude that the bullets matched, the absence of any such specificity simply went to the weight of his opinion.

Defense counsel certainly probed the State's firearm expert's opinion during cross-examination and argued that the jury should disregard it because it lacked any reasoned basis.

In fact, defense counsel even elicited evidence that there is a more objective method for firearm identification—the consecutive matching stria method—that he did not use. The reviewing court agreed with defendant that the State's firearm expert's opinion is similar to the expert opinion found to be inadmissible in Safford, but it declined to follow Safford.

“Safford is an outlier case,” and no court since Safford has required that an expert disclose the specific reasons for his opinion as a prerequisite to admissibility.

Thus, the court in Negron found that “the fact that [the latent fingerprint examiner did not rest his analysis or ultimate opinion on a specific number of comparison points” simply went to the weight of his opinion that certain fingerprints matched.

And looking to Safford itself, this court concluded that its analysis was flawed. While the court in Safford cited the principle that the information on which an expert bases his opinion must be reliable (Safford, 392 Ill. App. 3d at 221), it did not correctly analyze that principle.

That principle centers on whether “the underlying facts or data upon which [the expert] seeks to base an opinion are of a type reasonably relied upon by experts in the particular field.”

But the majority in Safford asked a different question—whether the expert sufficiently detailed the reasons for his opinion. The presence or absence of such details is not the same as whether the expert relied on information of a type reasonably relied upon by experts in his field.

In this case, the State's firearm expert testified that he relied on the two bullets’ class characteristics and individual characteristics to reach his conclusion. He testified that other firearms and toolmark examiners rely on this information in conducting their analyses.

Thus, the State established that the State's firearm expert based his opinion on reliable information, i.e., information on which other experts in his field rely.

That he did not specify which individual characteristics matched on these particular bullets (i.e., the basis of his opinion) simply affected the weight of his opinion—a question for the jury to resolve, not a question for the court to resolve when deciding whether to admit or exclude the State's firearm expert's testimony.

Moreover, this reviewing court disagreed with the court’s conclusion in Safford that the failure to reveal the basis for an expert opinion necessarily curtails a defendant’s right to cross-examine the expert.

This case provides an excellent example. Here, defense counsel cross-examined the expert on his inability to specify which individual characteristics he identified as matching on the two bullets.

And she was able to elicit testimony that the Illinois State Police lack objective criteria to guide their firearms comparison, and that the consecutive matching stria method of identification has a more objective, data-driven foundation.

Defense counsel then used these points in her closing argument.

While the expert's testimony did not help defendant—defendant would have benefitted most had the State's firearm expert's testimony been excluded entirely—his inability to recall which individual characteristics he identified did not preclude defense counsel from ably cross-examining him. 

See also People v. Jones, 2015 IL App (1st) 121016 (April).

People v. Valdez, 2016 IL 119860 (September). Episode 242 (Duration 8:15).

Judge's immigration admonishments cured the lack of any immigration advice from trial counsel.

People v. Kilcauski, 2016 IL App (5th) 140526 (August). Episode 241 (Duration 9:02)

Constitutional and statutory speedy trial right violations occurred from these unique facts.

Podcast Episode 240 (Duration 18:51) of the Criminal Nuggets features the September 2016 criminal case list. There were 39 published cases dealing with criminal law issues. My case list summarizing these decisions was 35 pages long!

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Don’t worry if you didn’t get to them. Listen to the audio round-up and download your copy of the case list to peruse when you find the time.

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

If you can spare approximately 19 minutes, you can easily get caught up with the top 10 September cases for 2016. Here's a quick snapshot of what you missed:

1. People v. Reyes

The reason why the Illinois Supreme Court finally said de facto life sentences for juvenile offenders are unconstitutional...was it because they were brave or the only logical thing to do? Go to case.

2. People v. Valdez

How the Illinois Supreme Court has paired back Kentucky v. Padilla...this means less Illinois attorneys will be ineffective. Go to case.

3. People v. Cherry

If armed violence cannot be predicated on an offense that makes the possession or use of a dangerous weapon either an element of the base offense or an aggravated or enhanced version of the offense then why can aggravated battery be an appropriate predicate offense? After, all aggravated battery use of a firearm is a Class X while aggravated battery great bodily harm is only a Class 3. Go to case.

4. People v. O’Neal

A sneaky little way the prosecution can abuse the felony murder rule. Go to case.

5. People v. Lubienski

WARNING. The police can stop you if your tire touches a traffic lane just once. How the hell else can they figure out what the heck you are up to? Go to case.

6. People v. Theus

Remember Heien v. North Carolina? SCOTUS said police can justify a traffic stop even if they are mistaken about the traffic law only if the law itself is ambiguous. Wrong! Even completely unambiguous traffic laws may be used to justify an error by the police. Go to case.

7. People v. Nesbit

The simple fact is that you can be found ineffective for not revoking your client’s bond fast enough. Go to case. 

8. People v. Lucious

Do you confuse conspirator statements in furtherance of a conspiracy with the Bruton rule prohibiting hearsay from a coconspirator? Does it seem like one rule allows what the other prohibits? Listen to the podcast to see how we straighten it all out. Go to case.

9. People v. Tate

Why bond call judges might be systematically committing reversible error...especially if you file an SOJ. Go to case.

10. People v. Buckhanan

This father and son attorney duo run independent law firms. See how this murder defendant gets a new trial because of that. Go to case.

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

September 2016 Case ListDownload the most recent Illinois monthly case list. 

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Download this case list now!

People v. O'Neal, 2016 IL App (1st) 132284 (September). Episode 239 (Duration 13:06)

Defendant shoots his own friend on accident but was acting under an unreasonable claim of self defense. 

Paul Meyers of the Kane County Public Defender’s Office does his best to finally set me straight on the intricacies and interplay between impeachment, substantive evidence, and prior inconsistent statements.

More than once on the Criminal and Premium Nuggets Podcasts I have reported that “even experienced trial courts face serious uncertainties when applying section 115-10.1 of the Code.” Well, apparently I’m not immune from falling into this evidentiary trap.

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If you don’t do anything else, at least download the cheat-sheet and other impeachment/prior inconsistent statement resources we put together to ensure you don’t ever make another error on this topic. This is the all new and improved mental mind map that must go in your trial notebook. Hit “Add to My Library” button you see below.

Download the most recent roadmap that…
 helps you avoid impeachment & prior inconsistent statement error.
Download this cheat-sheet now.
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The podcast guest in this discussion presents a logical, easy to follow roadmap to helps us all understand exactly what impeachment is, how it relates to substantive evidence and how they both intertwine with prior inconsistent statements.

Paul is Kane County, Illinois Public Defender assigned to the general felony division. 

Paul does a great job of…

• Presenting General Threshold Issues
• Laying Out a Roadmap or Cheat Sheet
• Explaining How a Brothers Motion Should Be Used

The interconnectedness of impeachment, substantive evidence, and prior inconsistent statements itself can occupy a small library. In this podcast, we focused on getting the basic concepts explained and understood. 

This way, you could see for yourself how the overall structure of the “correct” analysis fits together. Above all, the overarching goal was to understand the basics so you could walk away with an easy to understand and easy to follow cheat-sheet on this topic.

You’ll have to be the judge on deciding if we succeeding with this mission.

• 725 ILCS 5/115-10.1
• Illinois Rule of Evidence 801(d)(1)(A)
• Illinois Rule of Evidence 607
• Illinois Rule of Evidence 613
• People v. Blakey, 2015 IL App (3d) 130719 (November 2015) (prior inconsistent statement in this DUI huffing case was admitted in error)
• People v. Evans, 2016 IL App (3d) 140120 (July) (courts still getting it wrong, prosecutor allowed to get away with a little too much)
• People v. Hallbeck, 227 Ill.App.3d 59 (2nd Dist. 1992) (seminal case on laying foundation for a prior inconsistent statement)
• People v. Cruz, 162 Ill. 2d 314, 359-60, 643 N.E.2d 636, 658 (1994)(affirmative damage required before party can impeach their own witness)
• People v. Brothers, 2015 IL App (4th) 130644 (September 2015)(acknowledge hearing explained)
• See Also Prior Inconsistent Statement Impeachment Is Not Necessarily a Thing
• See Also Two Step Formula To Avoid Prior Inconsistent Statement Error
• See Also Better Read This If You Are An Illinois Trial Attorney

► The simple fact is that as a group we are all still confusing impeachment, substantive evidence, and prior inconsistent statements. Paul jumps right into it explains what’s going on. 

► Anytime an attorney is analyzing an impeachment scenario there are some threshold issues that must first be considered…discover these threshold issues.

► What is the “affirmative damage” rule? Do you know how or when to apply it?

► Listen in while Paul explains in normal language exactly what Rule 607 is trying to capture. Go to minute 3:42.

► See minute 4:01 for my detailed confession on what I got wrong and the truth about exactly how I was mistaken on this very issue that I myself have been hyping.

► Here is the better way to approach this problem. This procedure begins with asking whether or not a statement is even inconsistent (even this can get hairy). Then the fun really begins after that.

► Remember in law school how they talked about collateral and non collateral issues. That pops up again. Except this time it makes sense. 

► Remember your law professor talking about “extrinsic evidence”? Yeah, that’s a thing. It too has it’s place, and we find it.

► In many ways the core of this analysis boils down to quickly determining if you have a substantive prior inconsistent statement on your hands. Here’s the quickest way to run through those steps.

► Sometimes it doesn’t matter who’s witness is on the stand. Other times it matters immensely. Get clear on exactly when a witness cannot be impeached at all.

► Why can’t you impeach your own witness when their testimony is merely disappointing?

► How to deal with turncoat witnesses (hint: this is not just a witness who has flipped on you).

► Can you put into words and describe the crucial difference between substantive statements and just plain old vanilla impeachment? Go to minute 38:41 for a concise, understandable definition of these terms.

► Where does having a “good faith basis” fit into all this?

► Discover all the fun things you can do with an acknowledgment hearing after filing an Brother’s motion. (Hint: some of this stuff totally helps the prosecution more than the defense. Go to minute 27:04)

► How to create substantive evidence in a case that doesn’t have any.

► The single most important thing you can do in a domestic case if you have a wobbly witness.

► When NEVER to file a Brother’s Motion. How to conduct a Brother’s hearing. PLUS the gist and proper procedure to follow during a Brother’s motion. Go to minute 18:02.

► The recanting-recanter can really throw a kink in your case. Go to minute 26:10 to learn what to do when this happens to you.

Let me cut to the chase.

By giving us about 30 minutes and by downloading the materials on this page you’ll have an easy to follow road map, a checklist, and system that will help ensure you never make an impeachment, substantive evidence, prior inconsistent statement error again.

Download your roadmap right now.

Before you leave grab your copies and them to your own legal library.

Cheat-sheet & checklist, resource guide, and sampleBrother’s Motion all included.
Download now.

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These resources function as a starting point to get the big picture straight in your head. Almost certainly additional research will be necessary depending on the exact nature of the issues you are able to spot in your cases.