Kane County Nuggets

http://www.illinoiscaselaw.com/possible-prosecutorial-misconduct

Serious possible prosecutorial misconduct is being litigated in the Third Distrcit, but there appears to be a definite discovery violation. Podcast Episode 047 of the Criminal Nuggets Podcast discusses a case where the issue at hand involves weather or not a prosector told a witness to lie at trial. 

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Murder trial. Defendant shot the victim after a confrontation in the street. Defendant saying the whole time. “I only shot him because he was reaching for the gun in his waistband.” Defendant said he ran away and left both guns at the scene.

The 11 year old witness at trial testifies he only saw one gun. The Defendant’s gun.

No guns were actually found at the scene.

Direct appeal is lost. First post conviction is summarily denied.

This is where things get interesting.

The first pro se petition was based on the discovery that the 11 year old witness was the cousin of one of the prosecutors involved in the case. Not the guy who did the direct examination, but it was co-counsel. So he was sitting at the table when the 11 year old was testifying.

The trial court dismissed that petition only saying that the prosecutor “‘probably should have’ disclosed the relationship, but since it concerned only bias and witness credibility, the court would not order a new trial.” ¶ 8.

Now we get to this second post conviction petition.

Now Defendant has an affidavit from the witness himself saying. Basically, “Yea” the prosecutor is my cousin and also saying that

 “...the guy that got shot also had a gun when he got shot but I was told not to say that he had a gun.” ¶ 9.

Trial court again dismissed this petition saying that there was no reasonable probability that the outcome would have been different, this is basically saying that the petition is frivolous or patently without merit.

The appellate court reversed this finding and remanded the case so it could advance to a second stage postconviction process.

The reviewing court said this ain’t frivolous or without merit anymore. There is a gist of a constitutional  claim. Further, the reviewing court said that it pretty much looks like it was the prosecutor who told this kid to lie in court.

The reviewing court recognized that this is kind of a big deal and did a great job of not holding the defendant to too high a burden at the first stage of the post conviction process.

The court flatly held that when “a witness's testimony is entirely unreliable if he is under instructions from a prosecuting entity to lie or to omit certain facts while testifying.”

Is that completely crazy? I don’t know but the concurrent decision thought so.

I understand the denial of the first post conviction petition. There the defendant was only saying that he would have liked to have known that the main witness was cousin's with one of the prosecutors.

Obviously, there were some issues there that could have been explored on cross. You know, my attorney could have asked the kid if he felt pressure to testify a certain way to make his older cousin happy. That kind of thing.

But Defendant was not alleging in that first petition that the kid actually was told to lie.

To be absolutely clear. We don't know for certain that the prosecutor was the one who told the witness to deny that the victim had a gun. This is a fact that has to be developed as the case proceeds through the postconviction process.

This case is a great example of why we even have a post convictio process.

I understand the feeling that giving defendants a chance to file these things is a complete waste of time and money. The view is that all they are used for is to make meritless complaims about their convictions. A case with a conviction with a leanghty sentence never ends because the Defendant just uses every proceduural mechanism in the books to keep his case in the system.

This robs the victims and society of knowing that a case has been litigated to a definitive end.

However, as this case illustrates, somties a Defendant is not going to learn of a discovery violation or of prosecutorial misconduct until years down the road. We have to have some mechanism in place that a Defendant can access when and if important details involving his criminal process come to light.

This is why we can’t just scrap the opportunity to file a post conviction petition.

http://IllinoisCaseLaw.com/illinois-controlled-substance-act-stipulation-goes-wrong

The Illinois controlled substance act determines a person’s sentence depending on the weight of “any substance containing cocaine”. In podcast episode 046 of the Criminal Nuggets Podcast, I discuss a case involving a stipulation to the drug amount and testing that goes way wrong.

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Did trial counsel commit ineffective assistance of counsel by entering into a stipulation that rescued the State from having to prove the unprovable, namely, that the weight of the illegal substance defendant possessed was "900 grams or more"?

Defendant is serving 25 years in prison for  unlawfully delivering 900 grams or more of a substance containing cocaine, an offense he committed while having a prior conviction of unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D)).

Defendant was charged under the Illinois Controlled Substance Act. The exact charge Defendant faced reads, in part, that -

 “... it is unlawful for any person knowingly to ... possess with intent to...deliver...a controlled substance...Any person who violates this Section with respect to the following amounts of controlled...substances...is guilty of a Class X felony and shall be sentenced to a term of imprisonment as provided in this subsection (a)...not less than 15 years and not more than 60 years with respect to 900 grams or more of any substance containing cocaine...”

720 ILCS 570/401(a)(2)(D).

A drug raid discovered 15 individual bags of white powder in a purse in the kitchen.

Also found in the kitchen was:

The home owner testified that the cocaine belonged to Defendant, and that he was “baggy up” the cocaine before the raid.

Trial counsel stipulated that a chemical analysis by a forensic scientist showed that the drugs in the case tested positive for  "926.0 grams of cocaine."

After the stipulation was entered into the record, a testifying officer revealed that an officer commingled the powder from 15 separate bags into one bag before sending it off to the laboratory. “Thus, the substances in the 15 bags were never separately tested to determine whether each of them, individually, was indeed a substance containing cocaine.” ¶ 2.

Defendant argued that once all the powder was mixed it would have been impossible for the State to determine if the individual bags in fact contained any cocaine. This would have resulted in substantially less prison time.

According to Defendant’s petition, this stipulation, uninformed by any reasonable prior investigation, threw away a valuable, meritorious defense, a defense premised on the supreme court's decision in People v. Jones, 174 Ill. 2d 427 (1996).

The Illinois Supreme Court of People v. Jones, 174 Ill. 2d 427 (1996), discusses this measurement and testing issue.

That case distinguishes between the testing of pills v. a powder.

Random pill testing is sufficient to prove all group of pills are all the same chemical because of  the circumstantial evidence around pills.  

Pills will have similar - 

- that powder simply will not have. Furthermore, the likelihood and risk that multiple substances can be mixed into a powder and thrown into a plastic baggy is great.

Proof beyond a reasonable doubt, thus, requires that separately packaged baggies of suspected baggies be tested individually to prove their contents. To do otherwise would be to rely on rank speculation. Our system requires much much more.

It is easy to see how the defense team entered into this stipulation.

First of all, the defendant had always been saying that the drugs were not his. He testified to that. I'm sure he was telling his attorneys that from the get go. Thus, in the defense attorney's eyes the defense was aimed at preparing the client to testify. 

Second of all, Illinois State Police Laboratory Reports suck. 

They don't explain anything. Much is left to guessing and wondering. Often, all that is provided is a single page that lists the results. The reason the officer took the powder out of all the bags was because he wanted to tag the empty baggies for fingerprinting.

This meant that the chain of custody paperwork listed the individual baggies as separate exhibits. Nobody ever explicitly wrote down to explain that the baggies were empty! 

The attorneys would have seen the baggies going to the lab as separate exhibits. Then the final report comes in. This was just a single line of text saying the weight and that it was positive for the presence of cocaine. 

Yes, it could have been possible to determine that only one "item" was tested for drugs, but it would not have been "obvious."

This is what the scientists explained in the postconviction hearing through a written stipulation:

Generally, there was no need to test for purity, because the State had only to prove that the substance in question contained a controlled substance; the ratio of the controlled substance to other ingredients typically was irrelevant, since, under statutory law, the seriousness of the offense depended not on the amount of the controlled substance but, rather, on the amount of the substance containing the controlled substance. [The scientist] admitted that if 14 bags containing no cocaine were mixed with 1 bag containing cocaine, the crime laboratory would find that the entire substance was a substance containing cocaine.  ¶ 57.

This is usually how the laboratory scientist explains why they only conduct limited testing. Good luck getting them to conduct any additional testing of any kind.

It was not as though the trial attorneys did not see the issue and try to fix it.

The record reveals a mad scramble to "undo" the stipulation. There was a defense motion for a directed finding after it was clear that the mixing had occurred.

Denied. The judge said, "You stipulated! So Nah Nah." Maybe they didn't use those words but that was pretty much the reasoning. 

There is more. The defense team was then ready to argue to the jury that the prosecution did not prove beyond a reasonable doubt that there was more than 900 grams of cocaine. But the State made a motion in limine that prevented the defense from arguing exactly that point. 

Again, the judge them a chance to fix the mistake. They couldn't explain to the jury that because of the mixing of the baggies the State could not prove that 900 grams or more of a substance containing cocaine was present!

So it was not like the trial team did not vigorously try to undo what had happened. Their efforts just didn’t bear any fruit.

It is real easy for me to write a year after the fact that they could have 

In the heat of the moment during a trial you do what you can to alter the course of events. Sometimes possible alternatives don't always come to mind. 

Unfortunately, the appellate court conclude that the trial attorney was ineffective for agreeing to the stipulation before carefully examining the laboratory records. 

Trial counsel should have investigated whether the substance in each of the 15 bags was separately tested, since the weight of the illegal substance was an essential element of the State's case and, according to case law, the powder in each separate container had to be tested.

I created a mini Illinois case law review 2014. As you know, I have been reading, summarizing, and reporting on Illinois criminal case law for the entire year in 2014.

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I took the liberty to create a case list featuring the top 10 lawyer mistakes cited in 2014 Illinois criminal court decisions.

This Awareness Guide is clickable. Direct links to the cited cases are directly embedded in the PDF. The document lists -

decisions that jumped out and punched me in the face.

I have this burning desire to let you know about these cases as well.

If you are a practicing criminal law attorney in the State of Illinois then you must be made aware of this case list i created. 

Click Here to Get Your Free Copy | or click the image below:

In podcast Episode 045 of the Criminal Nuggets Podcast I summarized 5 of the cases featured in my Awareness Guide. Here are the cases I discus.

People v. Perez, 2014 IL App 120978 (3d) (10/01/2014).

This is the case with the lady who was in traffic court on a ticket. She is there all morning before the judge takes a break.

The lady leaves the courtroom and in hallway says words to the effect of -

“I’m here all morning and now she takes a fucking break!”

A bailiff assigned to another courtroom hears Defendant and rats her out to the judge whose room she left.

That judge then proceeds to ream the lady out and finds her in indirect criminal contempt of court. She was sentenced to 8 days in jail for the contempt.

Well, the appellate court reversed this conviction outright for two main reasons:

People v. Trzeciak, 2014 IL App (1st) 100259-B.

The judge in this case completely berates a venoir member who was trying to get out of jury duty.

He told the judge he could not be fair to the prosecution.

Judge was so angry with him he punished him by making him wait around all day until the judge felt good and ready to let him go.

You think the other potential jury members felt comfortable answering questions truthfully?

People v. Barnes, 2014 IL App (1st) 120634.

Ok, we can understand the zeal of a young prosecutor. This prosecutor was prosecuting an aggravated battery to a child case.

It was a severe scalding.

The child was too young to testify. Since the kid could not take the stand to testify, the ASA was not going to have a chance to show the wounds to the jury.

No problem.

Instead, the prosecutor slapped an exhibit label on the child and proceeded to admit the child into evidence. Then the jury was shown the injuries.

The record does not reveal if the clerk then took the child into storage as evidence.

The appellate court found this little tactic to be prejudicial to the defendant and reversed the conviction.

Yes, there were pictures of the the injures already admitted into evidence.

People v. Short, 2014 IL App (1st) 121262 (10/29/2014).

This criminal defense attorney tried to fall on his sword. His post trial motion alleged he himself was ineffective because he failed to make his client’s intentions clear to the court.

You see, the defense wanted to exclude other crimes evidence.

When the lost all the motions in limine on the issue, there “plan” was to plead guilty to the counts involving the other crimes. This way the jury would never hear that evidence.

Well, the judge read the instructions on the tainted count and informed the jury of that charge. The Defendant only plead guilty after the judge had so informed the jury.

First, the court noted that there is no per se finding of ineffectiveness just because trial counsel is claiming it on himself

The normal Strickland analysis is appropriate.

Here the judge, said, “nice try but you were quite clear.” What really happened is that the client changed his mind.

Trial counsel is not ineffective just because the Defendant makes decision to his detriment.

Finally, I mention People v. Guzman-Ruiz, 2014 IL App (3d) 120150.

This was a post conviction petition that was granted because trial counsel gave sketchy immigration advice.

Actually, trial counsel was quite accurate.

He told his client that a conviction for possessing pounds of cannabis with intent to deliver meant an automatic removal from the United States. But also included his opinion and prediction that the feds were not likely to follow through with her removal.

They followed through.

We have to stick to just the facts when we are advising on immigration consequences. Really, in the end, we don’t know what the feds will do with any particular case.

However, if the code says there will be draconian results that has to be what we report.

If you want the complete list of the Top 10 Criminal Lawyer Mistakes of 2014 then click here . 

http://IllinoisCaseLaw.com/impossibility-defense-an-affirmative-defense

The Impossibility Defense is an affirmative defenses that must be raised in the first instance by the accused. The burden shifts to the State when the issue is first raised. [powerpress] Subscribe: iTunes | Stitcher | RSS

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See People v. Costello, 2014 IL App (3d) 121001 (10/23/2014).

Defendant has an order of protection issued against him saying that -  

"[The defendant] is ordered to turn over any and all firearms, including the following: 9 millimeter [sic], 30 odd [sic] six, several shotguns and other guns typically kept in [the defendant's] gun safe [sic] in his home."  ¶ 3.

The police go his house with a warrant to pick up his guns and specifically the gun identified in the warrant. Defendant lets the police and sounds like he opens the safe for the police.

The police find no guns in the safe and Defendant doesn’t appear to be in any possession of the guns.

He then is subsequently charged with and convicted of violating  the Illinois Criminal Code violation of order of protections, a class A misdemeanor under 720 ILCS 5/720 ILCS 5/12-3.4(a)(1)(i).

Here is the exact section of the criminal code. The Illinois Criminal Code Section 12-3.4(a) provides that a person commits violation of an order of protection if:

"(1) He or she knowingly commits an act which was prohibited by a court or fails to commit an act which was ordered by a court in violation of:  (i) a remedy in a valid order of protection ***, [and] * * *

(2) Such violation occurs after the offender has been served notice of the contents of the order *** or otherwise acquired actual knowledge of the contents of the order."

720 ILCS 5/12-3.4(a)(1)(i), (a)(2).

"[T]he statute incorporates by reference a trial court's order as an element of the offense [of violating an order of protection]." People v. Davit, 366 Ill. App. 3d 522, 527 (2006).

The charges stated that specifically that - 

"having been served with or having acquired actual knowledge of the contents of an Order of Protection *** [the defendant] did intentionally commit an act which was prohibited by the  Order of Protection, in that said defendant failed to surrender firearms and ammunition to local law enforcement." ¶ 3.

Thus, the State was required to prove that a valid order of protection directed the defendant to turn over any and all firearms, including the firearms specified in the order, and that the defendant failed to do so after having been served with notice of the contents of the order.

Well, the defense thought the issue was whether the state established beyond a reasonable doubt that Defendant was guilty? 

The appellate court saw the issue a little bit differently. 

The reviewing court indeed believed that the state had met its burden. They said the state did not have to prove that Defendant was in possession of a gun just that he did not surrender a gun to the police when he was required.

Defendant was arguing that the state did not prove that he had the ability to surrender the gun and to find him guilty on these facts means switching the burden of proof of proof requiring him to prove he could not surrender the gun.

Defendant never formally raised the impossibility defense.

Probably, because he did not know it was considered an affirmative defense which requires that the “affirmative defense rules” be followed.

Let’s backtrack a bit.

A voluntary act is a material element of every offense, “which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing.” 720 ILCS 5/4-1.

Also, “One cannot be held criminally liable for a failure to perform an act that he or she had a legal duty to perform if it would be impossible to do so.” ¶ 13.

With crimes of omission, where one fails to perform an act that he has a legal duty to perform, a defendant may raise an affirmative defense of impossibility if it was impossible for the person to perform the legal duty. See United States v. Spingola, 464 F.2d 909, 911 (7th Cir. 1972).

It is kind of hard to have expected defense counsel to know this because “Illinois law is largely silent on the common law defense of impossibility.” ¶ 15.

This appellate court discovered that -

“impossibility is best treated as an affirmative defense to a crime of omission to be raised by a defendant when applicable rather than an element for the State to prove in every criminal omission case.” ¶ 15.

To be fair to the court, it also identified that  the “Illinois Supreme Court has recognized involuntary conduct as a defense rather than treating it as an element of every crime for the State to prove in every case.” See People v. Grant, 71 Ill. 2d 551 (1978).

So, this defendant was obligated to follow the rules of an affirmative defense.

Rules of Affirmative Defense

“Affirmative defense” means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.” 720 ILCS 5/3-2(a).

Once a defendant raises an affirmative defense -

“the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.” 720 ILCS 5/3-2(b).

This is called raising the issue and shifting the burden to the State to disprove the affirmative defense. In this case, Defendant never formally raised his impossibility defense so the State did not have to disprove it.

Specifically, “the defendant did not present any evidence that he did not actually own or possess the firearms listed in the order of protection such that he would be incapable of turning them over to law enforcement.” ¶ 17.

The objectives met by this rule are -

The court explained their rationale this way:

“A criminal defendant may not circumvent the provisions of an order of protection by failing to turn over items specified in an order of protection without offering any sort of explanation for his failure to produce the items. Had the defendant offered some evidence that it was not possible for him to comply with the order, he would have raised an impossibility defense and the State would have had to prove beyond a reasonable doubt that it was possible for the defendant to comply with the order. The defendant having failed to do so, we must affirm the conviction.  ¶ 17.

http://IllinoisCaseLaw.com/police-dog-sniff-set-up-procedure

Police dog sniff set-up procedures may be ordered by the police. Listen to podcast episode 043 of the Criminal Nuggets Podcast to discover what the heck it means to “prep” a car for a dog sniff.

See People v. Thomas, 2014 IL App (3d) 120676 (10/27/2014).

Defendant was a passenger in a car being driven with its bright lights. Unfortunately, for Defendant it was a canine unit that stopped Defendant.

The officer ordered the occupants turn the heat on and roll the windows up while the dog sniffed around the outside of the car. 

The police dog alerted to the presence of drugs in the car. The officer removed the occupants.

“As defendant got out of the car, two prescription Vicodin pills fell off of his coat and onto the ground.” ¶ 5

Defendant put them in his mouth. Another officer then -

 Forced defendant to the ground

• Ordered defendant to open his mouth, and
• Choked defendant until he passed out
• Defendant awoke the following day in a hospital.

In any event, during a search of the vehicle, officers discovered cocaine between the driver and passenger seats.

Defendant was convicted of possession of a controlled substance.

The police dog sniff set-up procedure was the part where the police officer ordered the car occupants to -

• Turn the car on
• Turn Heater on High
• Blow Air Through the Vents
• Roll Up all the Windows

A car set-up like this if ripe for the sniffing.

The issue in this case was whether the  dog sniff and the officer’s order to prepare the car for the sniff by turning the heat on and rolling up the windows unlawfully prolong the traffic stop.

“The free-air sniff began between five and seven minutes into the stop.” ¶ 22. This amount of time isn’t even close to the amount of time found to be unreasonable in Illinois case law.

The fact that the traffic ticket was not written until after the dog sniff is not dispositive in this case. The dog was already with the officer. So the officer did not stall or delay the interaction so that a canine could be brought to the scene.

What about the order to turn the heat on and roll up the windows?

The Illinois Supreme Court has spoken on this issue.

People v. Bartlett, 241 Ill. 2d 217 (2011), has held that the “setup” procedure of ordering a vehicle occupant to roll up windows and turn blowers on high before a dog sniff of the exterior of the vehicle is not an unreasonable search.

Apparently, this is comparable to suitcase “prepping.” DEA agents “prep” suitcases before a dog sniff by pressing them lightly with their hands and slowly circulating the air in order to procure a scent from the bags. See  United States v. Viera, 644 F.2d 509, 510 (5th Cir. 1981).

This court recognized that these “prepping procedure” is “forcing  a vehicle's occupant to make available to officers, without a warrant, something that is normally on the interior of the car and afforded at least some fourth amendment protection

Although a dog sniff is not typically classified as a search, it does not mean that the use of a drug-sniffing dog cannot eventually become a search, and an unlawful one at that.” ¶ 33

The court when on to say that -

“It is not the dog sniff that offends the fourth amendment. It is the police ordering the driver to roll up the windows and activate the fan that crosses the line. This "setup" procedure is analogous to an officer ordering the occupant to empty his pockets and throw the contents out the window onto the ground. The occupant cooperates, and among his personal effects is a small bag containing contraband. The contraband, now in plain view, prompts the officer to place the occupant under arrest. This is not, nor could it ever be, the state of fourth amendment jurisprudence. While plain view and plain smell are established exceptions to the warrant requirement, ordering a vehicle occupant to participate in an assisted sniff of the interior of his vehicle transforms the free-air sniff into a search governed by the fourth amendment. However, until the setup procedure employed here and in Bartelt is overruled, we must affirm.  ¶ 33.

Thus, the car prep and suitcase prep is not sufficiently intrusive as to offend the fourth amendment. See Bartelt, 241 Ill. 2d at 231.

“Stopping a vehicle and detaining its occupants constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 653 (1979); People v. Harris, 228 Ill. 2d 222 (2008).

An initially lawful seizure can violate the fourth amendment if its manner of execution unreasonably infringes interests protected by the Constitution. Illinois v. Caballes, 543 U.S. 405, 407 (2005); Harris, 228 Ill. 2d at 235. For example, a traffic stop that is justified by the interest in issuing a warning ticket to the driver can become unlawful if it is ‘prolonged beyond the time reasonably required to complete that mission.’ Caballes, 543 U.S. at 407; see also Harris, 228 Ill. 2d at 235.

"Brevity is an important factor in determining whether a detention was reasonable, but the court should also consider whether the police acted diligently in pursuing the investigation." People v. Welling, 324 Ill. App. 3d 594, 602 (2001).” ¶ 21

At the end of day, something is reasonable if a judge says that it is.

The Bartlett judges ultimately said that a police dog sniff set-up procedure is reasonable thing to be ordered. The court did not analyze the case from a normal "reasonable suspicion" vantage point. 

The case law has been clear that traffic stops are governed by the standards and rules surrounding the reasonable suspicion standard. 

A major pillar in that area of the law is the premise that an individual has a right to refuse the requests coming from law enforcement. So what happens if the driver refused to "prep" his car?

We don't know. If the police have the right to "order" these procedures, then do they have the right to drag people out of a car to prep the car themselves when and if the occupants refuse?

The order to prep itself is a police intrusion that the judges were fine with. What about an order to prep plus dragging people out the car so the cop can turn the heat on himself? We have to wait for that case to come to the court system.

Until “Bartlet is overturned, this court affirmed these pre-sniff prepping procedures.

http://IllinoisCaseLaw.com/dui-sentencing-winning-on-a-technicality

Here is a DUI sentencing example of winning on a technicality. In Podcast Episode 042 of the Criminal Nuggets Podcast, I discuss the idea of "winning on a technicality". Is it time to retire this term?

 Subscribe: iTunes | Stitcher

To download a summary of the arguments I use to defeat the 6 month "child in the car" jail provision in DUI cases click the image below. 

In regards to the concept of "winning on a technicality," there is a large difference in opinions.

Individuals who use that phrase, typically use it as a description of an illegitimate tactic. Yet, the attorneys who are employing a specific legal tactic never think of themselves as doing something improper.

Is there something wrong with winning on a technicality?

So, how can two sides be thinking so differently about the same thing?

As you contemplate a possible answer to that question, all I ask is that you not jump to any conclusions.  It will be easy to conclude that  defense attorneys must be so morally corrupt that they have lost all sense of a moral compass.

However, that explanation is no more filling than jumping to the conclusion that all prosecutors are so zealous about locking up bad guys that they have gone blind to the rule of law.

Obviously, none of these are true. Let's just start with the basic and true idea that both defense attorneys and prosecutors are intelligent, moral beings.

I begin the discussion by talking about where I think the source of the disagreement begins. It begins by taking note of the 3 pillars that support a victorious legal case.

Most cases can be described as consisting of three pillars that hold them up:

Legal experts believe that these three pillars  support any  legal case. This is all theoretical stuff. It is not complicated at all. It is helpful here, so bare with me for a couple paragraphs.

One of the pillars is the facts of the case.

All cases depend on the facts or the story that make it up. Another pillar is the law that is applied to the facts of the case. Literally, we are just talking about the code. These are the boring sections in the code book and body of case law that address the situation made up by the facts.

You see, nothing hard here. The final pillar is the skill and expertise of the lawyer.

The idea is that the side that can "win" or capture at least two of the three pillars is going to be the victorious side.

Much of the difference in opinions that exist between those who believe in improper "technical" defenses and those who don't can be understood by understanding these pillars.

You see, I believe that those who perceive winning on a technicality as something being illegitimate are putting much of their emphasis on just one of the pillars. Those who see no moral hang-ups with winning on a technicality are emphasising a completely different pillar.

Listen to the podcast to see what I am talking about. 

There is a provision in the Illinois Sentencing Code that describes DUI sentencing. 

In the podcast, I talk about  a section of the Illinois DUI sentencing code. The section I talk about says that:

"A person who violates subsection (a) is subject to 6 months of imprisonment...if the person was transporting a person under the age of 16 at the time of the violation." 625 ILCS 5/11-501(c)(3).

This part of the law seems to be saying that whenever a person is charged with a DUI and they had a child in the car with them then that person must serve 6 months of incarceration.

Listen in as I explain that the words in the box do not actually mean what they say. 

If you go back and look at section (c)(2) of the section I described above. You'll notice that section uses the term "shall".  

In the code, that word means that the law requires or mandates that something happen. When the term is used in a sentencing statute it means a mandatory sentencing provision is being described.

However, the "child in the car" provision does not use the word "shall."

The lawmakers were using the "shall" to make mandatory sentencing provisions. They did exactly that in the (c)(2). If they didn't use the term in (c)(3) that must mean they did not intend to make that section mandatory!

Additionally, if a court were to interpret section (c)(3) as being a mandatory jail provision other crazy and ridiculous consequences would follow.

For one thing, a first time DUI offender would be disqualified from receiving court supervision. One thing we know that lawmakers knew how to do is how to prevent court supervision.

They have a whole section on who can and who cannot receive court supervision. See 730 ILCS 5/5-6-1(c). 

Noticeably absent from the "no supervision" sections is any mention of a person with a DUI and a child in the car. Sending a person to jail would effectively mean that they cannot receive court supervision. 

This true because jail is not an allowed sentencing condition for those on court supervision. See 730 ILCS 5/5-6-3.1.

If we look at the section (d), which comes right after (c)(3), aggravated DUI's are being described. These are class 4 and above charges of driving under the influence.

Notably, what is missing from these sections is any requirement of at least 6 months incarceration. So even the most serious DUI charges don't have this 6 month requirement. It would be completely ridiculous to send a first time misdemeanor DUI offender to jail for six months when felony offenders don't have to suffer the same consequences.

For clearly more serious conduct there is no additional penalty of 180 days jail.

Aggravated DUI's include stuff like

If these cases are subjected to the 6 month jail requirement it makes no sense to send a first time DUI offender to jail for 6 months.

Here is the link to my DUI sentencing example:  625 ILCS 5/11-501(c)(3).

Also, I mention the Illinois court supervision law. It is helpful in this discussion. It can be found at 730 ILCS 5/5-6-1(c).

After you listen, let me know what you think by hitting either the facebook, twitter, or google + button below or above the article.

If you are interested in a word document which summarizes the arguments described in this podcast and post you can click here for arguments.

http://IllinoisCaseLaw.com/more-on-double-jeopardy-definition/

Today, I want to talk more about the double jeopardy definition. In the last show we discussed a case that involved double jeopardy attaching (or not attaching) at  sentencing hearing. However, some ideas on this topic didn’t get flushed out.

In the last show we asked: “When does double jeopardy attach during a sentencing hearing?”

If you recall, we were talking about a defendant who was charged with a misdemeanor DUI. SeePeople v. Guillen, 2014 IL App (2d) 131216 (11/25/2014).

Defendant had pled guilty to the charge. The judge admonished him. Then, at the very last moment right before the judge sentenced Defendant the State moved for a dismissal.

The judge stopped the hearing and granted the motion for the dismissal.

The appellate court ruled that jeopardy had not attached because the judge did not “accept” the Defendant's guilty plea. Thus, the State had the right to charge Defendant with a felony DUI.

A good double jeopardy definition explains that this is the legal principle that prevents against multiple prosecutions. See Episode 040.

In the last podcast I did not do a good job of pointing out that had the court found that jeopardy had attached to defendant in the plea hearing the State would have been prevented from proceeding with any type of charge against the Defendant.

The felony charge would go away, but so would any misdemeanor charge.

The State would not have been allowed to reinstate the original misdemeanor charge.

Why do we even have a rule against double jeopardy? Why does this rule exist?

This question is essentially asking for a double jeopardy definition.

The rule is designed to do two things. These things can be thought of the different sides of the same coin.

The rule against double jeopardy -

[bullet points]Acts as a Restraint on the Prosecution

Protects a Defendant

The prosecution is prevented from abusing their authority and limits overreach.

The accused is protected from abuse from the procession and from repeated prolonged prosecutions.

Prosecution (Prevent Overreach, Abuse)

So if we believe in the principles that we want to restrain the prosecution from unfettered authority to bring charges and offer an accused some protection against prosecutorial abuse then we have to say “jeopardy” attaches sometime during a prosecution.

However, if we say that jeopardy attaches only after an actual verdict of guilt then that would mean the prosecution would be allowed to bring charges against defendant and dismiss at any time before an actual verdict is reached.

This would mean the prosecution could start a trial and dismiss before the the verdict if they didn’t like how their witnesses testified.

This would be allowing the very kind of prosecutorial abuse say we want to prevent. This would offer the accused no protection at all.

Thus, we say that “jeopardy” has to attach some time before a verdict.

Exactly where the line is drawn in a certain sense is arbitrary.

The line just has to be drawn somewhere.

However, we don’t want to the draw the line too soon in the prosecution. We do want the State to have some flexibility in bringing and dismissing charges as the facts, witnesses, and evidence is developed.

Jeopardy to Soon

The farther down the jeopardy line is moved, the less flexibility the State would have to dismiss and recharge. It is easy to imagine a rule that says that “jeopardy” attaches after the mere bringing of charges.

This essentially would rob the state of any flexibility in bringing and dismissing charges against an accused. This kind of super Defendant protection would come at a high price of the prosecution.

The rule against double jeopardy at its core is a compromise between giving the prosecution some charging flexibility and protecting the Defendant from overreach ana abuse.

http://IllinoisCaseLaw.com/when-does-double-jeopardy-attach-during-a-sentencing-hearing

When does double jeopardy attach during a sentencing hearing? This is the question raised in Podcast Episode Number 040 of the Criminal Nuggets Podcast. The Defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed them to dismiss the charges so they could indict on felony charges.  

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See People v. Guillen, 2014 IL App (2d) 131216 (11/25/2014).

Defendant was charged with misdemeanor DUI. Defendant plead guilty to that offense in a cold plea. In the middle the hearing, after the court admonished Defendant and "accepted" his guilty plea, but before the court entered a judgement and sentenced Defendant the State moved to nolle pros the charges.

The State had realized that because of his prior DUI conviction that the current charges could be enhanced to a felony.

The court granted the motions to dismiss the misdemeanor.

Defendant was then charged by indictment with two counts of aggravated DUI, a felony, pursuant to the Illinois Compiled Statutes Traffic Code section 11-501(d)(1)(D) of the Code (625 ILCS 5/11-501(d)(1)(D)).

The indictment alleged that the defendant had previously been convicted of DUI that resulted in great bodily harm to another and the defendant had driven while under the influence of alcohol (count I) and while having a blood alcohol concentration of 0.08 or greater (count II).

Was Defendant subjected to double jeopardy after he had plead guilty to the misdemeanor offense but before he was sentenced?

The double jeopardy clause protects against multiple prosecutions and multiple punishments for the same offense by forbidding three things: a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969);  U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10, and 720 ILCS 5/3-4(a).

The Supreme Court has explained:

“When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense. When a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him, ‘thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ”

United States v. Wilson, 420 U.S. 332, 343 (1975) (quoting, 355 U.S. 184, 187-88 (1957)).

Determining whether the double jeopardy clause is violated by a second proceeding against a defendant involves two steps.

First, we ask if the defendant was placed in jeopardy during the first proceeding. See Bellmyer, 199 Ill. 2d at 537.

Second, if yes we ask if a second proceeding may, nonetheless, proceed. See Id.; cf. 720 ILCS 5/3-4(a)(3), (d)(2) (second prosecution permitted where the first prosecution was not “terminated improperly,” or where the conviction resulting from the first prosecution was later invalidated, set aside, reversed, or vacated, so long as the defendant was not thereby found not guilty).

The United States Supreme Court has set bright-line rules about the point at which jeopardy attaches in a trial before a jury or a judge. 

In a jury trial, “ ‘jeopardy attaches when the jury is empaneled and sworn.’ ” Martinez v. Illinois, 134 S. Ct. 2070, 2074 (2014) (quoting Crist v. Bretz, 437 U.S. 28, 35 (1978)).

In a bench trial, “jeopardy attaches when the court begins to hear evidence.” Serfass v. United States, 420 U.S. 377, 388 (1975). Illinois law applies these same tests in the context of jury and bench trials. Cabrera, 402 Ill. App. 3d at 447.

The law is not so clear on a guilty plea before sentencing. The case law has established that during a plea jeopardy attaches when the trial court accepts the guilty plea. See People v. McCutcheon, 68 Ill. 2d 101, 106 (1977).

But “[t]he Illinois Supreme Court thus has not decided whether, when a trial court begins to accept a guilty plea but then vacates that plea during the same hearing, it has “accepted” the plea so as to cause jeopardy to attach.” ¶ 35

One jude on this three judge appellate panel decided the case on substantial outside authority.

This judge pointed out that “[t]here is, of course, no absolute right to have a guilty plea accepted” and such acceptance is within the sound discretion of the trial court. Santobello v. New York, 404 U.S. 257, 262 (1971).

The appellate court preferred to grant the trial judge the authority to vacate a guilty plea before the plea was accepted in an final and unconditional manner. This made sense because -

This case illustrates why we would want to give the judge broad discretion in accepting pleas.

The State nor the defense agreed on the minimum sentence nor the factual basis for the plea. The judge was basically trying to gather all this information during this plea and sentencing hearing.

When it became apparent to the judge that the case was more serious than what first appeared it made sense to allow him to reject the plea so the State could dismiss the charges.

The defendant never faced any meaningful jeopardy nor could he expect any degree of finality merely from the fact that the trial court began to discuss sentencing issues during the same hearing.

We are all familiar with retrials after trial error when there was sufficient evidence presented at trial to convict.

Similarly, the case law allows a trial judge to reject a sentence plea in the middle of the guilty plea hearing and reset the case for trial when the accused makes a statement of innocence. See People v. Cabrera, 402 Ill. App. 3d 440, 453 (2010).

Additionally, when ruling that a subsequent prosecution should be allowed to proceed, the appellate court pointed out the following things:

The State and the trial court realized during the initial plea hearing that the offense amounted to felony DUI rather than the misdemeanor. The State’s motion to nol-pros the charges to which a defendant had begun to plead guilty was not brought for an improper reason. Thus, the trial court could properly terminate the plea proceeding, vacate the plea, and grant the State’s motion without violating the policies that underlie the double jeopardy protection.

“Any “acceptance” of the plea was preliminary rather than unconditional, and thus the defendant was never placed in jeopardy.” ¶ 48.

Trial court’s dismissal of the felony charges is reversed.

The defendant here did not face “‘the unfair harassment of successive trials’”, and double jeopardy did not bar the subsequent prosecution of the defendant. McCutcheon, 68 Ill. 2d at 106; quoting United States v. Goldman, 352 F.2d 263, 266 (3d Cir. 1965).

The dissent in this case brought up interesting and powerful counterpoints:

See Bellmyer, 199 Ill. 2d at 540; Jackson, 118 Ill. 2d at 188-89; People v. McCutcheon, 68 Ill. 2d 101, 106 (1977).

The dissent wrote that -

“Moreover, our supreme court’s focus on whether a plea is accepted leaves little room for the consideration of policy matters underlying a defendant’s double-jeopardy protections, such as the defendant’s interest in finality and the possibility of overreaching by the State. See State v. Thomas, 995 A.2d 65, 76 (Conn. 2010).

Instead, the sole issue is whether the plea was accepted. ¶ 71.

The dissent justice felt that “[i]n this case, a review of the transcript of the sentencing hearing clearly shows that, by the time the State moved to nol-pros the charges, the trial court was in the process of sentencing defendant. Since the court was sentencing defendant, a fortiori, it must have already accepted his plea.” ¶ 72.

The dissenting judge simply could not agree that the plea had not been accepted by this point. The jackson court infers that when there is nothing else to be done to determine guilty  then jeopardy attaches. People v. Jackson, 118 Ill. 2d 179, 189 (1987).

“To conclude, common sense dictates that a plea must be accepted before a sentence is imposed. That is precisely what occurred here.” ¶ 81.

As a practical matter, one has to wonder if this case has in effect moved the gold post. The law use to be that jeopardy attached during a sentencing hearing sometime after a guilty plea is entered and before sentencing. 

This case seems to suggest that the a judge can deny a plea right to those seconds before sentencing without jeopardy attaching.

http://IllinoisCaseLaw.com/is-it-a-per-se-conflict-of-interest-when-trial-attorney-raises-ineffective-assistance-on-himself

Is it a per se conflict of interest when trial attorney raises ineffective assistance on himself? In Podcast Episode number 039 of the Criminal Nuggets we have a trial attorney who is asking for a new trial for his client because of mistakes he says he made in the first trial. Should a judge give special consideration to these motions?

Did Defendant receive ineffective assistance after a per se conflict of interest arose when his trial counsel argued his own ineffectiveness in the motion for a new trial?

This was a shooting after a party. 

Defendant lost a motion to bar gang evidence because one his charges was unlawful possession of a weapon by a gang member the higher count was attempted murder.

Counsel asked the judge to be allowed to waive jury on that sole count of possession of a weapon by a gang member so that the State could not admit the evidence of gang membership. Judge denied this request.

The jury was then read all four counts including the gang count. Jury was also asked if they could give Defendant a fair trial even though they would hear evidence of gang membership.

But then...

After the jury was picked. Defendant plead guilty to the unlawful possession of a weapon by a felon count. The jury never heard any gang evidence.

At this point, defense counsel moved to have the venire dismissed. Counsel argued that informing the jurors of alleged gang membership tainted them. The trial judge denied this request.

The trial judge then reread to the jury the charges defendant faced, now only attempted first degree murder and aggravated battery with a firearm. The court informed the jury it would no longer hear evidence of any alleged gang membership.

“Each juror indicated he or she could be fair and impartial.” ¶ 72.

Defendant claimed self defense.

The victim left a party. Outside he began to argue with passengers in a dark SUV. Punches were thrown through the window by the victim and returned by the the passengers in the car. Nobody ever got out.

Defendant was in a back seat. Defendant drew a gun and shot victim. The bullet struck the victim’s right forearm and then entered the right side of his chest, piercing the right lung.

He survived.

“The jury acquitted Short of attempted first degree murder, finding him guilty only of aggravated battery with a firearm.” ¶ 58

In his post trial motion, defense counsel that he errored by allowing the court to inquiry into the veneer's possible prejudice if they heard gang membership evidence.  

This allowed the jury to be prejudiced because it was told during voir dire that Defendant was an alleged gang member and that he had been charged with charges he had pled guilty to. Thus, the bell "could not be unrung" and the jurors would likely speculate as to why those charges were removed from their consideration.

First of all, defendant is not entitled to bench trial on certain charges and jury trial on others. See People v. Arndt, 50 Ill. 2d 390, 395 (1972).

When trial counsel makes the motion, there is no per se finding of ineffective assistance of counsel for himself.

Additionally, there are per se conflicts of interest that may lead to ineffective assistance of counsel. See People v. Taylor, 237 Ill. 2d 356, 374 (2010). Once a per se conflict is found, there is no need to show that the conflict affected the attorney's actual performance. Id. at 374-75.

The Illinois Supreme Court has identified three situations where a per se conflict exists:

(1) Where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution

(2) Where defense counsel contemporaneously represents a prosecution witness; and

(3) Where defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant.

See Id. at 374. See also People v. Steele, 2014 IL App (1st) 121452 (09/30/2014).

Notably missing from this list is a claim of ineffectiveness from the same attorney who was allegedly ineffective. See People v. Perkins, 408 Ill. App. 3d 752, 761 (2011) (attorney alleging his own ineffectiveness doe not fall within any of the identified per se conflict categories).

To show that there is an actual conflict of interest, the defendant must offer "some specific defect in his counsel's strategy, tactics, or decision making attributable to the conflict." People v. Spreitzer, 123 Ill. 2d 1, 18 (1988).

Claims of ineffective assistance of counsel are analyzed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Albanese, 104 Ill. 2d 504, 525 (1984).

Under Strickland, a defendant must show that -

(1) Counsel's performance was deficient and that
(2)He or she was prejudiced because of it.

See Strickland, 466 U.S. at 687.

To show deficient representation, a defendant must establish that counsel's performance fell below an objective standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001). To establish prejudice, the defendant must show there is a reasonable probability that, but for counsel's deficient representation, the result of the proceeding would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. ¶ 92.

The right to effective assistance of counsel refers to competent, rather than perfect, representation. People v. Palmer, 162 Ill. 2d 465, 476 (1994). “Strickland requires only that a defendant receive a fair trial—a trial free of errors so egregious that they probably caused the conviction. People v. Griffin, 178 Ill. 2d 65, 91 (1997).” ¶ 93.

Remember, trial counsel included an ineffective assistance claim in the post trial motion. He claimed either a per se or actual conflict.

His allegation is that he did not clearly inform the court of Defendant’s intent to plead guilty of the bench trial was denied. This error lead to the jury being informed about Defendant’s alleged gang status.

On appeal Defendant contends the trial court misunderstood the nature of his counsel's pretrial motion. He argues counsel was requesting a bench trial or that he be allowed to plead guilty to the gang charge before voir dire to prevent the jury from being informed of the two charges and alleged gang membership.

Defendant alleged his trial counsel was ineffective for failing to clarify the nature of his pretrial motion and seek a full ruling on his alternative request to plead guilty before voir dire. This so prejudiced him by allowing the potential jurors to hear about his alleged gang membership.

The reviewing court did not find that any misunderstanding occurred.

Defendant only asked to waive jury on some of the counts; he did not say he was prepared to plead guilty.

Defendant acknowledges he plead guilty in the middle of the proceedings to prevent the potential jurors from hearing about his alleged gang membership.

The court said counsel's’ trial strategy left him in this position, where the jury first heard the gang membership issue and then heard that it was not an issue after all.

In any event, there is no evidence that the jury was prejudiced in this case because they said they wouldn’t be and they acquitted him of the first degree murder.

It does not matter that trial counsel was the first to raise a claim of ineffectiveness on himself. There was no merit to counsel’s claim of ineffectiveness.

We would have a mess on our hands if the court gave special treatment to claims of ineffectiveness brought by trial attorneys themselves.

At first, it seems these kinds of allegations should be given  some kind of special weight. After all the trial attorney is going to know best whether he or she made a significant error in the case.

What is the wisdom in appointing separate counsel to get to the bottom of another trial attorney's error? 

The problem, is that this kind of a rule would essentially be given the defense a second bite at the trial or litigation apple. It would be to easy for the defense to raise error on themselves after a particular trial strategy does not lead the results they expected.

This system would be ripe for abuse.

Less scrupulous defense attorneys would simply plan on a post trial motion to undue unrealistic or reckless trial positions.

But even honest trial attorneys would be tempted to second guess their original positions when the outcomes are not what they expected.

http://IllinoisCaseLaw.com/dui-sentencing-laws-rational-or-frenzy

DUI sentencing laws infect an Illinois non DUI sentencing hearing. Have good intentioned DUI laws turned into an  uncontrollable emotional frenzy?

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Podcast Episode number 038 of the Criminal Nuggets Podcast discusses the recently reversed prison sentence in People v. Daly, 2014 IL App (4th) 140624.

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We have a family celebrating a birthday in rural Illinois. In the early morning hours, a 24 year old female defendant was driving an ATV with four passengers.

Defendant made a right turn. The vehicle skidded and overturned. The 19 year old passenger in the passenger’s seat suffered severe internal injuries that she died from.

Defendant admitted to drinking alcohol at the party.

Defendant was charged with Aggravated DUI for being under the influence and driving an all terrain vehicle, while under the influence of alcohol, and a death results. See 625 ILCS 5/11-501(d)(1)(F).

This is Class 2 Felony offense with an enhanced sentencing range of 3-14 years in prison. Additionally, there is this weird presumption for prison.

The sentencing section says this:

 ...unless the court determines that extraordinary circumstances exist and require probation, [Defendant] shall be sentenced to: (i) a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person...”

625 ILCS 5/11-501(d)(2)(G)

The flips around the normal presumption for probation for a felony offense. See 730 ILCS 5/5-5-3(c)(2).

The prosecution needs to be given credit for trying to do the right thing in this case. The State had agreed to accept a plea to reckless homicide. This sounds like a more serious crime.

However, reckless homicide was a class 3 Felony offense. More importantly, the presumption of probation kicks back in. See 720 ILCS 5/9-3(d)(2).

The judge declined that plea.

The judge cited the enormous public policy imbedded in the statute demanding prison. Judge was referring to the DUI statute not the reckless homicide statute.

Once the judge rejected the sentencing plea, it was clear the defendant was either going to have to have a trial or cold plea to something and face the same judge for a sentencing.

Defendant cold plead to the reckless homicide charge.

Her mitigation was substantial -

It was the State at sentencing who told the judge he could and should impose probation because she did not plead guilty to the DUI but to a lesser charge. The State told the court all the mandatory sentencing requirements he was reading into this case did not apply.

“In sentencing defendant, the trial court rejected both parties' recommendations and alluded again to the public policy of the aggravated DUI statute.”  ¶ 18.

Judge began by saying he has considered the mitigation then went on to talk about -

The judge then sentenced Defendant to 3.5 years in prison. Boot camp was quickly suggested by the parties but rejected by judge immediately.

“[T]he appellate court was never meant to be a rubber stamp for the sentencing decisions of trial courts. A reviewing court may disturb a sentence within statutory limits if the trial court abused its discretion in imposing a sentence.” ¶ 26.

The appellate court said that in there - 

“review of the record in this case shows little to indicate the trial court considered ‘the nature and circumstance of the offense,’ ‘the history, character and condition of the offender,’ or defendant's rehabilitative potential in fashioning its sentence. Instead, the record shows the court considered the nature and circumstances of an offense to which defendant did not plead guilty.” ¶ 30

Appellate court pointed out that the record did not reveal that defendant was intoxicated. All the record showed is that seatbelts were not being worn.

She wasn’t even speeding.

The appeals court also pointed out that a trial judge is not allowed to -

The appellate court concluded the trial judge abused its discretion.

The sentence was reduced to probation and remanded back to the trial level for resentencing. The court wisely ordered the case go before a different judge.

Does this case demonstrate that we are getting a little too crazy with DUI sentencing laws?

Not trying to be controversial. In general, I agree crime and punishment is a deterrent. I agree DUI deaths are a problem that should be discouraged by the law.

But can’t we do that with one simple law we all know, understand and execute?

The judge in this case was suppose to be the rationale party. The court is suppose to stay detached neutral and apply the law applicable in the case before the court.

Simple task and the court couldn’t do it.

Judge was the most emotional party in the case. I'm not trying to belittling the loss by the victim and her family. But the victim's family seemed to be in calm and collective about the criminal side of things.

Defense attorneys have quietly and loudly been saying this for  years now. In general, the fight it on a case by case basis in court.

What is different in this case, is that the prosecution got a feel for the effects when a frenzy takes over. Rationality and doing the right thing get lost.

Prosecution’s interest aligning with defendants in this case. May this case can give us some insight into the current state of affairs.