Kane County Nuggets

No contempt of court this time for dropping the F-Bomb.

http://illinoiscaselaw.com/contempt-of-court-cheat-sheet/

Besides breaking and violating every procedural safeguard known to man, this conviction for contempt of court cannot be supported by the facts. Even if everything the tattle tale said were true, what she said and the circumstances around how she said it did not make it contempt of court.

People v. Perez, 2014 IL App (3d) (09/30/2014). http://www.illinoiscourts.gov/Opinions/AppellateCourt/2014/3rdDistrict/3120978.pdf

What Did She Do?

Respondent was in traffic court all morning. In the hallway, a bailiff assigned to a different courtroom heard respondent say, “I waited all fucking morning and now she takes a break and I’m tired of waiting.”

The bailiff thought it was necessary to tattle tail. The judge then charged here with indirect criminal contempt.

Her attorney asked for continuance to research the charge, answer the charge, and prepare potential witnesses. You know, basic defense attorney stuff. The judge refused the continuance.

The bailiff testified that she went all the way down the hallway using the F-word. When bailiff told Respondent she could not use those words in the courthouse, Respondent stopped. The words were not directed at court personnel or anyone in particular.

The judge clearly stated that she believed the standard was by a preponderance then proceeded to sentence her to 8 days in jail.

Issue

Was it contempt of court for this defendant to cuss in the hallway after she was in court all morning before the judge took a break?

What is Contempt of Court Exactly

Contempt of court comes in two different flavors which means there are four different types of contempt of court. When, I first had to roll up sleeves with contempt of court situations, I created a cheat sheet to help me make sense of all this stuff.

It can get complicated and confusing, and I found that my chart helped clear everything all up for me. You can download this chart by simply providing your email and clicking here.

Civil v. Criminal

The first flavor of contempt of court comes in understanding the difference between civil contempt and criminal contempt of court.

Civil contempt is coercive in nature. The judge or court wants to force someone to do something. It is considered prospective in nature. That just means the court wants to person to do something in the future. Usually, the very near future.

We say that with civil contempt the contemnor holds the keys to his own cell. We just mean, that he can end the sanction by complying with what the court wants him or her to do. The faster they do it, the sooner they are let out of jail.

Criminal contempt is punitive in nature. The court is not looking into the future, but instead is looking backwards. The goal is to punish behavior that has already happened and that the court considers unacceptable.

For example any behavior that goes against these four principles can be punished as criminal contempt of court:

(1) Judges and other court officials are entitled to respect when performing their judicial duties

(2) Judicial proceedings should be conducted in an orderly manner

(3) Court orders should be obeyed; and

(4) Individuals should not commit fraud upon the courts.

Direct v. Indirect

Direct contempt of court means that the contemptuous behavior is known to the judge. This usually is true when the person does what they did in court in front of the judge. This is the fastest way to get in trouble.

Direct contempt of court can be either civil or criminal. It depends, on what the court is trying to get done with the sanction. Regardless, of whether it is direct civil contempt or direct criminal contempt, less procedural rights are required.

The law says that with direct contempt -

·     May be summarily adjudicated immediately upon occurrence  of the contemptuous acts”

·     No evidentiary hearing required

·     No notice required

·     No written charges required

Indirect contempt of court is not behavior that is not known to the judge directly. This usually

the case when the contemptuous behaviour occurs outside of the courtroom.

Indirect contempt of court do come with more procedural and constitutional protections for the person being charged. Indirect criminal contempt has the most of these protections.

For example any person who has been charged with indirect criminal contempt is allowed to benefit from the following safeguards:

·     “Petition for Adjudication of Criminal Contempt”

·     Same constitutionally mandated procedural requirements as other criminal proceedings

·     Right to have nature of the charge definitely and specifically set forth in writing

·     5th Amendment right applies

·     Presumption of innocence

·     Right to court appointed counsel

·     Right to public trial

·     Right to confront and cross-examine witnesses

·     Right to subpoena witnesses

·     Admissions in open court may be punished as direct contempt

·     Conduct must be shown to be willful

·     Ct must recite that defendant found guilty beyond a reasonable doubt

And the Adjudication must:  be in writing, set forth the grounds upon which the contempt is based, contain not merely opinions or conclusions of the trial court but facts showing the basis of the contempt and contain an adjudication of contempt and the sanctions imposed

Analysis

There were two main problems or mistakes in this case.

First, this defendant was clearly being charged with indirect criminal contempt. Notwithstanding the title of the petition and the fact that the judge called it civil contempt. She was sentenced to 8 days in jail and that is punitive.

Thus, this defendant was entitled to all the procedural and constitutional safeguards afforded any person that is charged with a crime. She received virtually, none of these safeguards.

The petition was titled “Petition for Rule To Show Cause”. That was a mistake since this language applies only in proceedings for indirect civil contempt and impermissibly shifts the burden of proof to respondent. In re Marriage of Betts, 200 Ill. App. 3d 26, 58-59 (1990).

This created a great deal of confusion for the court concerning the proper burden of proof.

Sufficiency of the Evidence

Second, there were serious problems with the sufficiency of the evidence in this case.

The appellate court was unable to conclude the evidence proved respondent intended to embarrass the judge, since respondent did not communicate this statement directly to the judge or identify the judge by name while in the hallway.

In addition, the bailiff’s testimony established respondent did not use profanity when referring to the judge as “she.” Instead, respondent complained the respondent was tired of waiting all “f*** morning.”

The appellate court also thought there seems to be an element of truthfulness to respondent’s declaration and verbalized frustration. These remarks about the additional delay resulting from the recess may constitute protected speech under the first amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 272-73 (1964) (“[This Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision.”).

Further, she did not disobey any direct or indirect orders of the court and in fact simmered down when the bailiff asked her too. So no court officer was disobeyed.

Holding

After considering the multiple ways a respondent may commit indirect criminal contempt, the court conclude the State’s evidence did not establish respondent was guilty of indirect criminal

contempt beyond a reasonable doubt. This conviction was reversed outright, leaving the judge no opportunity to refile against Respondent.

Download

If you want to see the cheat sheet and chart that I use to keep contempt of court straight in my head all you have to do is hit PDF image below and leave your email.

Criminal trespass Illinois lesson in the law taught to us from a case involving a defendant who was twice escorted out of a DMV by police. He won his case though. In podcast episode 016 of the Criminal Nuggets Podcast, I discuss what this case teaches us about the Illinois crime of criminal trespass to real property.People v. Chai is the case under review here.

http://illinoiscaselaw.com/criminal-trespass-illinois/

This case features a man who is at the DMV office to help out a friend get his driver’s license. We don’t know too much about the details about what happened this first time. We do know that DMV employees call the police. Defendant is escorted out by the cops and told to either go home or not to come back. We don’t know if his friend got his license that day.

Same guy is back at the same DMV several months later. This time he is there to help his wife who have limited English skills get her driver’s license. Defendant is there several hours walking her through the procedure. There are no problems at first. Everyone keeps their cool.

Until it is time for the on road driver’s test. I’m pretty sure Defendant is informed that he can’t be in the car with his wife during the test. Eventually, Defendant is informed that the test can’t go on anymore because his wife does not understand English so well.

This is when Defendant loses it. “It’s not fair,” becomes his loud refrain. You guessed it, police are called again. The facts at trial were debated, but we do know that Defendant is pushed out the building by an officer. The both of them fall to the ground outside the building and defendant ends up with a gash on his head.

Defendant was acquitted at trial for resisting and disorderly conduct but was found guilty of criminal trespass to real property.

The issue in the case was whether or not Defendant was given property notice that he was banned from the DMV for life after the first time he was escorted out by the cops.

The crime of criminal trespass to real property in Illinois provides that:

“A person commits criminal trespass to real property when he or she…enters upon the land of another, after receiving, prior to the entry, notice from the owner or occupant that the entry is forbidden.”

 720 ILCS 5/21-3(a)(2).

Thus, there is a notice requirement that says the owner or occupant of the property must inform the charged individual that they are not welcomed on the property.

The appellate court noted that the property in question here was a public building. The second time, when Defendant was there with his wife he was never asked to leave.

The State was arguing that the notice to stay out was given to the Defendant several months earlier when the police escorted him out when he was there helping his friend.

However, in the instant case, the calling of the police to remove a troublesome patron several months earlier did not imply a notice to that patron that he was never to return.

The property at issue is a public facility. The court noted that Defendant certainly couldn’t be the only person to commit the relatively innocent “offense” of losing his temper at a DMV. 
Thus, it is not natural or reasonable to infer that the DMV, by enlisting the help of the police months earlier, instructed the police to tell Defendant that he was forever banned from the facility.

A lifetime ban from a public facility has to be more definite and concrete than the circumstances in this case.

This conviction was overturned regardless of the jury’s finding of guilt. The court stepped in and struck a conviction that it felt was not justified by the law.

Hurry, for our court system. But please stay calm and quiet at your next visit to the DMV. We don’t want you give us any law lessons.

Police car search legal in Illinois is what the case law tells us. One does not have to search too far to find a case saying this. In podcast Episode 015 of the Criminal Nuggets Podcast I discuss a case where 7 year drug conviction was reversed, even though the officer said he smelled marijuana.  

http://illinoiscaselaw.com/police-car-search-legal-in-illinois-if-they-smell-marijuana

I discuss the case of People v. Abdur-Rahim.

In 1985, the Illinois Supreme Court first authorized a police car search if the officer claimed to be able to smell marijuana in the car. See People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498 (1985).

This decision was followed by later appellate courts. See People v. Hansen, 326 Ill. App.3d 610 (4th Dist. 2001) and People v. Boyd, 298 Ill. App. 3d 1118 (4th Dist. 1998).

The Supreme court said that

“...distinctive odors can be persuasive evidence of probable cause. A police officer's detection of controlled substances by their smell has been held to be a permissible method of establishing probable cause. This method of detection does not constitute an unconstitutional search. In the case at bar, it was the duty of [the officer], when confronted with circumstances which tended to indicate that criminal activity was taking place to investigate in order to determine whether such criminal activity in fact existed. Based on the particular facts of this case, including the officer's experience and training on the detection of controlled substances, we find that probable cause existed to justify the warrantless search.”

Stout, 106 Ill 2d at 88.

This is the law in Illinois. Which only begs the question. If the officer was claiming to smell marijuana, why did the search of this car get reversed by the appellate court.

Facts of This Case

To get a better feel for all the facts of this case, you want to see my earlier summary of this decision.  http://illinoiscaselaw.com/illegal-traffic-stop-due-to-undue-delay/

Essentially, we have a trooper who is taking forever with the traffic stop. He called for the police drug dogs but they were late in arriving to the scene. When the officer finally has finished writing the tickets he hold on to the ticket and defendant’s driver’s license. Defendant is removed from his truck. And while standing outside the truck the officer asked defendant about the smell of marijuana coming from inside the truck.

Defendant admits to contraband being in the center console. Cop finds it. The dogs finally show up and indicated in the back of truck. Felony amounts of marijuana are found by the police.

Exactly what the officer said about the smell of marijuana coming from the truck was this,

“When I was up there talking to him I thought I could smell an odor of burnt cannabis, not raw cannabis. I’m not certain the way the wind was blowing and stuff. I’m not going to call him out on that, and I am going to question him about it at some point. I am not going to use that as probable cause to search the vehicle. I’m not 100% sure about that.”

So, the officer was admitting that the smell was not that strong and that he couldn’t really draw any conclusions from it.

Is this, situation really any different from every other case where an officer testifies in court to smelling a “faint odor of cannabis.”

The difference in this case, is that the officer’s doubts were recorded on his mic and delivered to the defense in discovery. One only wonders, what the officers testimony at trial would have  been had he not expressed his true opinion on the mic.

This brings me to my second point, lets look at all the other cases where the police are saying that through their training and experience they have the ability to detect cannabis from what they smell.

Even if the police in court actually believes that, should the law put so much faith in “faint odors of cannabis”?

Just because the cop says he smells marijuana, may not necessarily mean marijuana is present. I have gotten off an elevator in the courthouse plenty of times convinced that the smell of marijuana got stuck to my suit. Usually, there are other people in the elevator who reek of that smell.

So, does that smell mean they actively have marijuana on them, and that they can be legally searched? Or does it mean their clothes was recently in an environment with marijuana smoke aplenty?

In short, what exactly are the findings that justify the Supreme courts believe that “distinctive odors can be persuasive evidence of probable cause”?  Stout, 106 Ill 2d at 88.

When it comes to the faint odor of cannabis, I would suggest that this whole area of law be reexamined. This officer was caught on tape questioning what he smelled and what it proved. Maybe, its time for the court system to engage in this scrutiny.

Holding the DL was the Deal Breaker

Rather, than return the driver’s license to Defendant and issue him the citations, the officer removed him from the car to pursue the line of questioning dealing with the marijuana.

In the eyes of the court, this unnecessarily prolonged the traffic stop and turned the police encounter into an unreasonable traffic situation.

By not returning the DL when the traffic stop was essentially over Defendant could not leave. He was, thus, being detained unreasonably and the court found a Fourth Amendment violation.

The conviction was reversed.

A knock and talk is a police tactic. The goal is to conduct a warrantless search of a home by walking up to the residence, engaging in conversation with the resident, ending in consent for the police to enter and search. For an example of how not to conduct a knock and talk, listen to Podcast Episode 014 of the Criminal Nuggets Podcast.

http://illinoiscaselaw.com/knock-and-talk

In Episode 014, I discuss the case of People v. Kofron. 

Clearly, the appellate court had big problems with police and the appellate prosecutor in that case. The question that remains is whether or not this case illustrates THE problem with a knock and talk or was this case an isolated example of rogue cops?

Ultimately, how a person feels about the police tactic of a knock and talk is probably very similar to how a person feels about a stop and frisk.

A stop and frisk is a similar police tactic. Here, the goal is to conduct a warrantless search of a person. Police are trained to walk up to a person, engage in conversation, and eventually gain consent to conduct a search of the person.

Advocates against warrantless searches of person, probably won’t see the merit in a warrantless search of a home. Supporters of law enforcement who believe a consensual search of a person is an appropriate policy tool, probably see a consensual search of a home in the same way.

The trial court judge was really bothered by the warrantless search conducted in the case of People v. Kofron.  

The judge actual felt compelled to say this, on the record:

"In my years of law enforcement, I don’t know that I’ve seen anything that exceeds what-the conduct that I’ve seen here.”

People v. Kofron ¶ 11.

The appellate court in its written opinion felt compelled to say about the appellate prosecutors handling the appeal of the case for the State:

“We begin by addressing a number of distortions of the record on appeal made by the State in the ‘Statement of Facts’ section of its opening brief. These distortions are problematic not only because the State relies upon the distortions as key elements in support of its legal arguments on appeal, but also because the distortions undermine the credibility of the State in general.”

People v. Kofron ¶ 14.

To say the least, the trial judge did not believe the cops testimony. The cops were trying to say in court that they were given valid consent to enter and search the home. Sure, things got a little heated, but the resident finally “let them in”. Yea, that is how it went down.

Critics of this police tactic argue that one of the main problems is that there is no remedy when citizens are confronted with police personnel who simply do not accept “No” as the answer.

Police, often invest time, money, personnel and resources on these things. How easily, are they going to show up in force and then just walk away when the homeowner is less than enthusiastic about letting a S.W.A.T team into turns things upside down?

Clearly, the cops discussed in episode 014 did not accept “No”.

Is this case an example of the systematic problem with a knock and talk? Or is this just an example of bad cops executing a good strategy?

Let me know  what you think in the comments below.

A change of venue due to pretrial publicity case is discussed in Podcast Episode 013 of the Criminal Nuggets Podcast. People v. Sheley, is the case that is discussed. It demonstrates, that a change of venue is hard to win in court.

http://illinoiscaselaw.com/pretrial-publicity-prejudice-not-a-problem/

[The Case]

As far as public shock and outrage go, the case of People v. Sheley had it all. The defendant went on a crime and murder spree in the summer of 2008. Ultimately, he was charged with one of the murders.

In that case, he stole the victim’s truck, beat him to death, then drove the truck Missouri. In Missouri he killed multiple people including a child. Eventually, he drives back to Illinois, where he kills two more people.

Eventually,  Defendant is arrested and prosecuted for one of the Illinois murders.

[Motion for Change of Venue]

The defense attorney filed a motion for change of venue. He commissioned polls showing the over 60% of the community was outraged and believed Defendant to be guilty.

This motion was filed a year into the case. The actual trial was still two more years away.

[The Law on Pretrial Publicity]

The Constitution provides that:

“A defendant is entitled to a trial by an impartial jury.”

U.S. Const., amend. VI; Ill. Const. 1970, art. I § 8.

Case law tells us that an impartial jury is

“a jury capable and willing to decide the case solely on the evidence before it.”  

People v. Kirchner, 194 Ill. 2d 502, 528-29 (2000).

Additionally, there is no requirement that jurors be ignorant of the facts and exposure to pretrial publicity alone will not demonstrate improper prejudice. Yet, a juror must be able to set aside his opinions and decide the case solely on the evidence presented in court.

A potential juror should be believed when she states in open court that she is able to be impartial.

Sample Motion or Best Practices for Motion for Change of Venue Due to Pretrial Publicity

[Provide sample motion]

[In Practice Hard to Win]

In reality, it is often difficult to win a motion to change venue due to pretrial publicity. The reason, is that the process of picking a jury, itself, can be remedy to ensuring that twelve impartial jury members are chosen.

Trial courts will always have balance prejudicial pretrial publicity with two pretty overwhelming factors.

There will always be a strong public interest that a notorous perpetrator is brouht to justice in the community where the crimes took place.

Money. It will always be more expensive to try a defendant in a different location than the home jurisdiction.

Given these two factors, and others, combined with a fair voir dire process means a motion for change of venue due to pretrial publicity may rarely be won.

Voir dire is the remedy.

The task then of any jury selection process is pinpoint those circumstances where the public has been so inflamed from pervasive pretrial publicity that a juror can not remain impartial, regardless of their sincere claims to be able to.

[How to Conduct Voir Dire When Pretrial Publicity Was Extensive]

The trial court in People v. Sheley denied the defense motion for change of venue due to pretrial publicity, in part, because the court felt the voir dire process resulted in an impartial jury.

So lets look at some of the elements of the voir dire process used by the court.

Voir Dire Elements -

Unlimited time to question allowed

Extensive questioning permitted

Venir members separated during questioning (questioned individually)

Exact prior knowledge of the case deeply probed

The court felt that when these methods were employed, a pretty fair jury was put together.

I use to be quite the skeptic. I didn’t think that a jury could be trusted to remain impartial despite what they said in court. However, the trial in this case occurred three years after the murders. It does seem quite possible, that tempers had cooled down enough to allow for a fair jury to be assembled.

Here is a sample motion in limine that can be used to help ensure the court uses these special voir dire procedures.

[provide sample MIL]

The plea bargaining on a drug case with a defendant with a prior drug conviction can feel like a boxing match with one of the fighter’s arms tied behind his back. In my little analogy, guess which side has their arms tied down?

The prosecution had a pretty powerful tool they could use to hammer the defense and seek a higher sentence. They are quite fond of pointing out to the defense that a defendant with a prior drug conviction could be sentenced to double the maximum.

Well People v. Williams is a decision that may allow the defense bar to reset their plea bargaining with the State on their next drug case.

Let me explain.

Illinois sentencing statutes are all over the place. Careless lawmakers just keep adding things to the pile and leave it to us and the courts to figure it all out.

Well, in regards to the sentencing of drug offenders with prior drug convictions things have been straightened out in favor of the defense.

The Illinois Compiled Statutes Criminal Code contains a section that I will call the Double Drug Conviction Enhancement. This sentencing law says:

“Any person convicted of a second or subsequent offense under this Act may be sentence to imprisonment for a term up to twice the maximum term otherwise authorized.”

720 ILCS 570/408. The Act referred to is the Controlled Substance Act. See why I called it what I did. It says any person with a prior drug conviction being sentenced on  new drug case can be sentenced on an enhanced sentence, double the maximum.

However, the Illinois Compiled Statutes Code of Corrections contains a section that I will call the Exclusive Extended Term Provision. This different sentencing law says:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Article 4.5 of Chapter V for an offense ... unless the factors in aggravation set forth in Section 5-5-3.2 or clause (a) (1) (b) of Section 5-8-1 were found to be present...”

730 ILCS 5/5-8-2. Article 4.5 of Chapter V is merely referring to the felony classification system in Illinois.  The clause (a) (1) (b) of Section 5-8-1 is dealing with murder cases. But the factors in aggravation set forth in Section 5-5-3.2

Some of these factors in aggravation include:

Young victim

Older victim

Especially brutal Act

Especially heinous act

Defendant had prior conviction with same class or higher within last 10 years

So we have these two sections living in harmony. Before this case, it was just like adding one more factor to the above list. If a person with a drug case had a prior drug case he was enhanceable. That was the working rule.

Well, the Third District went back and read the Exclusive Extended Term Provision a little more closely. They noticed how it began, “A judge shall not sentence an offender to a term of imprisonment in excess of the maximum...” The term “shall not” sounds like they are prevented from doing something.

In fact, the appellate court interpreted this section to be an exclusive extended term provision. Meaning, any and all sentencing enhancements must be authorized by this section and no other. See how I got the name.

Well about the Double Drug Conviction Enhancement? Well to state it simply, that statute is out. It loses. The Exclusive Extended Term Provision wins out and takes precedence.

This means, that a person being sentenced for a drug case and if they have a prior drug case in their past will no longer be beat over the head with the threat of an enhanced sentence. If a drug offender with a past does not qualify for an enhancement under the Exclusive Extended Term Provision then they are not enhanceable at all.

This means that a drug offender being sentenced on a new offense can only be enhanced if that prior drug case is of the same class or higher as the new offense AND is within the last 10 years.

Involuntary manslaughter as a lesser included offense to murder, may seem like bucket one of the Buzo The Clown challenge. However, the case of People v. Smith, teaches us that actually getting this lesser included jury instruction may not be so easy after all.

The Case

People v. Smith was a murder trial. The defendant in that case was charged with murder. Apparently, he had a problem with the fact that his “girlfriend” was actually spending the night with her husband.

Defendant testified that, yes, he entered the home late at night when he was not invited. But they pulled a gun on him and he had to wrestle it away. Husband ended up with the bullets in his chest that killed him when the gun just “went off” during the struggle.

The Bait

What can get us in to trouble with a lesser included instruction, is the well known refrain that any “slight evidence upon a theory of a case will support a lesser included instruction.”

Additionally, we defense attorneys also take comfort with the knowledge that we can even claim self defense and still qualify for the lesser included offense of involuntary manslaughter. This is great because, a self defense to murder and an involuntary manslaughter offense have inconsistent mental states. No problem, right? The law does not prohibit the involuntary manslaughter instruction just because we claim self defense at trial.

AND we all know that our client does not even have to testify to successfully argue for involuntary manslaughter as a lesser included offense to the charge of murder. If we can point to the tiniest part of the State’s case which supports a theory for involuntary manslaughter then wham! We get the instruction.

State’s Evidence Was Different

This Defendant was betting on an easy path to the manslaughter instruction. He testified. Plus, the State’s own evidence supported a struggle like the way Defendant described.  Sounds like “any slight evidence,” doesn’t it?

Notwithstanding the rules and the truths described above, in this case it was a big problem that Defendant got on the stand and described his behaviour as self defense. The State’s evidence also did not completely help Defendant get the instruction. The State’s witnesses testified about an unjustified killing. Their version of events was completely different from Defendant’s

The State's Evidence Showed -

All bullets fired hit a victim

Victims were naked and defenseless

Defendant burst into their bedroom

Defendant broke the phone

Defendant took the gun

Defendant ran from police

Defendant lied about his name

What Went Wrong

This is all important because, we still have to remember that whether or not a lesser included offense jury instruction is provided to the jury is a discretionary decision by the court. It is still a judge that will make the decision and nothing happens automatically.

To win an involuntary manslaughter as a lesser included offense to murder instruction, the judge is going to look at the facts and decide if an act or recklessness was described somewhere in the proofs.

The court will look at these factors that establish recklessness -

The brutality and duration of the offense

The severity of the victim’s injuries

The disparity in size between the defendant and the victim

Whether the defendant used a weapon, and

Whether the defendant struck multiple times

Involuntary Manslaughter As A Lesser Included Offense

In this case, the dense was walking a very narrow tightrope when betting that they would qualify for the involuntary manslaughter instruction. They didn’t make it.

Relying on “the law” and the rules described above did not serve the client well in arguing for the lesser included jury instruction in this case. This case provides a lesson we should all head.

Just because we can theoretically win a lesser included on the thinnest of evidence, it does not mean that we actually will get it. The more inconsistent your client’s testimony is with a theory of reckless killing the less likely the instruction will be one.  Obviously, many of the important decisions to be made here are going to be made by the client. Important details are quite frequently out of the control of counsel.

Yet, the Defendant who is adamant about proceeding with a claim for self defense has to be counseled on what may be given up.

The reasonable doubt definition is the most common thing that a jury wants to know. The criminal court system in Illinois officially does not have a definition to give them. In podcast Episode 010 of The Criminal Nuggets Podcast, I discuss how courts are answering this question for the jury. 

http://illinoiscaselaw.com/reasonable-doubt-definition/

The results in People v. Thomas, motivated Episode 010.

So the jury is basically asking for a reasonable doubt definition. I use to wonder, why don’t they just make a definition for the jury and give them something. We define such basic terms for them like “possession” and “knowing”. Why don’t we define beyond a reasonable doubt?”

The case that I discuss in Episode 010, People v. Thomas, has given me some more insight.

Its hard to define the term!

It is actually quite difficult to think of words that would be helpful to the jury and not distort the law in some way. The entire concept of proof beyond a reasonable doubt is such an important principle in the American criminal justice system that screwing up that definition means a defendant may not get a fair trial with the highest legal standard.

So, in Illinois we just tell a jury that they must hold the State to a burden of proof beyond a reasonable doubt. That is all they are told. They are not officially given a reasonable doubt definition.

Juries have always asked for a definition, however, and they will keep on asking.

There have been recent court decisions that have reversed convictions because of the way the court answered that common jury question.

“What is the definition of beyond a reasonable doubt?”

Here are the three different ways, in these cases, that the judge and the attorneys answered the question for the jury.

In that last respond, the juries note said this:

“What is your definition of reasonable doubt[:] 80%[,] 70%[, or] 60%?”

So, it looked the jury may have applied a “probability” theory for the reasonable doubt definition. Courts hate that too. Plus, it really looked like that jury was accepting something as “low” as 60%.

The reviewing court did not like the three answers given above. If a jury interpreted the responses literally, it means they could technically define the state’s burden any old way they wanted. They could theoretically, say that proof was provided beyond a reasonable doubt if a quarter comes “heads” after a flip.

They wouldn’t get that arbitrary in the jury room. I hope. But there is still a danger that a jury could be satisfied with burden lower than 50% or something.

So technically, no, a jury is not allowed to define “proof beyond a reasonable doubt” any old way they want. The State has to remain with a high burden of proof.

Well, the Second District Appellate Court is basically saying this:

We don’t like answers that tell a jury that that they can come up with their own definition, but we ain’t gonna keep reversing convictions when that is what the jury is told.

The appellate court said that they are going to look for evidence that a jury actually used a very low standard before they reverse a case. If there is no evidence that the jury got it wrong, conviction will be approved even if the jury was not given an acceptable answer to their question on the proper definition of beyond a reasonable doubt.

We want jurors to wrestle with this idea. We want them discussing it for themselves. That is the whole point of a jury trial.

In trying to figure out the best way to respond to a jury when they ask for a reasonable doubt definition, It may be helpful to rethink this whole problem.

The relevant question in this discussion is not: “What is the correct definition of beyond a reasonable doubt?”

The important relevant question, instead, is this:

“What is the appropriate legal standard with which the jury should evaluate the State’s case?”

It is the answer to the last question that truly matters. What is important is that the jury is holding the State to the highest legal standard in our system.

When juries are asking for the definition of beyond a reasonable double. They should be reminded that they must hold the state to the legal standard of proof beyond a reasonable doubt.

Maybe the judge and the attorneys can try answering this way:

You have all the instructions required to reach a verdict in this case, the State must be held to the burden of proving defendant’s guilt beyond a reasonable doubt.

Do you have other ideas on what is the best way to respond to the jury’s note? Let me know in the comments below.

This defense attorney was found to have provided ineffective assistance of counsel for errors with jury instructions for the charge of possession of defaced firearm.

http://illinoiscaselaw.com/ineffective-assistance-of-counsel-during-jury-instructions/

The Charge

Illinois Compiled Statutes Criminal Code section 720 ILCS 5/24/5(b) http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K24-5 provides that -

“[a] person who possesses any firearm upon which any such importer’s or manufacturer’s serial number has been changed, altered, removed or obliterated commits a Class 3 felony.”

As you may have noticed, this crime does not contain a mental state. The legislators actually took it out on purpose!

The Courts

Illinois courts have said, “Look, we know the State lawmakers have taken out the the ‘knowledge’ requirement from this law, but that is dumb and there has to be a required mental state.”

They did not exactly say it that way, but in their rulings they have included a “knowing” mental state in that crime applied to every element.

Jury Instructions

There are no recommended jury instructions for this crime. Attorneys like recommended instructions because it means no reversible error.

When we have to draft our own instructions we know that “tracking the code” is a safe bet to avoid error. The problem with “tracking the code” for possession of a firearm with defaced identification marks is that the code there is wrong.

Ineffective Assistance of Counsel

The jury instructions in this case did not make it clear that the knowledge requirement also applied to the defaced identification marks. This means that the instructions needed to make it clear that the jury had to find that the charged defendant knew the gun in his possession had a defaced identification.

The instructions in this case did not do that.

The defense attorney was found to be ineffective for allowing those instructions to go through. We all know however, that despite the legal finding in this case. All the attorneys, including the court, have a responsibility to insure that correct legal instructions are create for the jury.

Yes, the legal conclusion was “ineffective assistance of DEFENSE counsel”. But everyone had a slip up in this case.

In Podcast Episode 008, I discuss how Illinois gun Laws are big mess.

http://illinoiscaselaw.com/illinois-gun-l…are-a-big-mess/

Why do we have two very similar charges criminalizing possession of a firearm by a felon? To make it even more confusing, in parts of Illinois one of these charges has been declared illegal.

The case of People v. Gayfieldhttp://illinoiscaselaw.com/auuw-gun-conviction-vacated-in-the-4th-district/ has  mixed things up even more.

Brief Background

People v. Aguilar, is the case that declared certain Illinois gun laws unconstitutional. Specifically, it declared that Illinois Compiled Statutes Criminal Code section 720 ILCS 5/24-1.6(a)(1) illegal.

However, even Aguilar acknowledged that some gun convictions were legal. The case specifically, pointed out Unlawful Use of a Weapon (UUW) cases by felons were good charges. In other words, those kinds of statutes were constitutional.

Gun Charges Against Felons

It turns out, in Illinois, there are two separate provisions in the Criminal Code which prohibit felons from possessing guns.

We have “Aggravated unlawful use of a weapon” under 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), and section (d).

Then we have “Unlawful Use or Possession of Weapons by Felons” under under 720 ILCS 5/24-1.1

[insert chart]

These are different laws, essentially, criminalizing the same thing.

People v. Gayfield

Then the Fourth Appellate District came along. This decision extended the finding of unconstitutionality to the first section I described above. The bottom section was left untouched.

To demonstrate even more how Illinois gun laws are a big mess, this new finding of illegality of 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), and section (d) is only recognized by the Fourth District.

This means, we defense attorneys, now not only have to keep in mind the exact charge a client may be facing; we also have to be keenly aware of where the charges are filed.

Illinois Gun Laws Are a Big Mess

You see what I mean. Some gun charges are unconstitutional in some parts of Illinois. Gun charges against minors and all the gun charges in the FOID sections are all still good law.

I think. For now.