Archive for September, 2008

Sex, Drugs, and Entrapment as a Matter of Law

In a new opinion by the Illinois Appellate Court, People v. Bonner (.pdf), the Court reversed Walter Bonner’s drug-delivery convictions and prison sentence because he was entrapped as a matter of law.

Bonner, a person with a low IQ and a high-school dropout, delivered cocaine to an undercover cop on multiple occasions.  The defendant’s unrebutted testimony was that Kara Vedros (a police informant) asked him multiple times to sell cocaine and he initially refused each request.  He eventually gave in after Vedros offered to sleep with him “if he sold cocaine to her or to one of her friends.”  Bonner and Vedros slept together and then Vedros introduced Bonner to the undercover cop that Bonner sold the cocaine to.

The Court concluded that the government, via Vedros its agent, induced Bonner to sell the cocaine and that he was not disposed to sell the cocaine before Vedros worked her charms on him.  Furthermore, it did not matter that there were multiple transactions — the Court could “identify no point at which the inducement might have lost its effect amid the cluster of transactions.”  Accordingly, as a matter of law, the government entrapped Bonner.

Jeremy Richey

The Word Is “Expungement”

Quite a few people have trouble spelling the word “expungement.”  Recently over at LawGuru, I have seen people ask questions about espungement and exspongement.  Neither of these spellings is correct.  You might be able to expunge your criminal history but you cannot espunge or exsponge it.

Jeremy Richey

The Public Defender Isn’t Free

It may come as a surprise to some that the public defender is not usually 100 percent free to poor defendants.  Typically, at the end of a criminal case, a judge will order a defendant to pay a small sum of money as a public-defender fee.  For example, in Coles County misdemeanor cases, the public-defender fee is usually somewhere between $50 and $100.

Is there a limit as to how much a judge can order a poor person to pay as a public defender fee?  Yes.  According to the Illinois Compiled Statutes, “Any sum ordered paid [. . .] may not exceed $500 for a defendant charged with a misdemeanor, $5,000 for a defendant charged with a felony, or $2,500 for a defendant who is appealing a conviction of any class offense.”  725 ILCS 5/113-3.1(b).

Jeremy Richey

Lawyers Get in the Way of Confessions

A lawyer can’t secretly interrogate his opposing counsel’s client  This is a big no no.  Illinois Rule of Professional Conduct 4.2 forbids it.

In People v. Santiago (.pdf), a recent decision by the Illinois Appellate Court, we learn about a prosecutor’s office that initiated a civil proceeding to take Santiago’s children away from her.  The trial court appointed an attorney to represent Santiago in the case.  After the attorney had been appointed, a detective and an assistant state’s attorney talked to Santiago.  Her attorney did not know that they were talking to her.  The result was that Santiago “made an incriminating statement memorialized in writing.”  The State then charged Santiago criminally.  The same set of facts were involved in both the civil and criminal cases.  The trial court suppressed the statements Santiago made to the detective and the assistant state’s attorney.

The Illinois Appellate Court, in a split decision, said that it wasn’t going to suppress Santiago’s incriminating remarks because the civil case and the criminal case were different matters; Rule 4.2 only prohibits a lawyer from communicating with another attorney’s client if the lawyer represents an individual in that same matter.

Due to this opinion, the State will be able to use Santiago’s remarks against her in her criminal case.  Apparently, the Court saw no need to let Santiago’s attorney get in the way of her confession.

One minor argument advanced by the Court to support the proposition that the civil (juvenile) case and the criminal case are two separate matters is that “nothing in the record supports that [the attorney in the civil matter], presumably trained in the nuances of juvenile proceedings, is competent in criminal proceedings.”  Apparently the Court thinks it takes a Clarence Darrow or Gerry Spence to tell a client not to confess to a crime.

If Santiago had a lawyer in the criminal matter, the result would have been different.  Since a single prosecutor’s office litigated both the civil case and the criminal case, and both cases stemmed from a common set of facts, Santiago’s remarks should have been suppressed.  To hold otherwise ignores realities in favor of legal fictions.

Jeremy Richey

DUI Convictions Can Create Surprises

In the world of DUI, not everything is as it seems.  Let’s suppose that you are arrested for DUI, blow over the limit, and then a short while later receive a document in the mail from the Illinois Secretary of State stating that your license will be suspended for a minimum of three months due to the statutory-summary-suspension law.  You are going to lose your license for three months, right? If you get court supervision (supervision is not considered to be a conviction) as a sentence for your DUI, that is correct.  But, if you ultimately receive a conviction for DUI, then your license will be revoked regardless of the statutory-summary-suspension consequence.

What does it mean to have your license revoked? It means that you will not be able to get your license back until you convince the Secretary of State to give it back to you.  Furthermore, it will be at least a year (it could be longer depending on circumstances) before you can even ask the Secretary of State to give you your driver’s license back.

Jeremy Richey

How Not to Practice Criminal Law

Here is a multiple-choice question for you.  Which of the following answers shows a wrong way to practice criminal law?

(a)  Don’t file any motions or other documents on your client’s behalf in either 2007 or 2008 while he sits in jail.

(b) Don’t seek a ruling on a motion to suppress evidence that has been filed.

(c) Don’t attempt to get your client released on bond even though a judge has provided a way for it to happen.

(d) All the above.

ANSWER: (d) All the above.

This question is, unfortunately, based on a real case.  The ABA Journal has the details.

“It Depends” Is the Answer to Your Question

It can be hard to get a straight answer out of a lawyer.  Why is that?  It is because lawyers are in the advice business and the advice business is full of peril.  J.R.R. Tolkien, the author of The Lord of the Rings,  understood the dangers of giving advice.  In Book One, Chapter Three of The Fellowship of the Ring, Frodo Baggins seeks advice from the Elf Gildor and the following conversation ensues.

Gildor was silent for a moment. ‘I do not like this news,’ he said at last.  ‘That Gandalf should be late, does not bode well.  But it is said: Do not meddle in the affairs of Wizards, for they are subtle and quick to anger.  The choice is yours: to go or wait.’

‘And it is also said,’ answered Frodo: ‘Go not to the Elves for counsel, for they will say both no and yes.’

‘Is it indeed?’ Laughed Gildor. ‘Elves seldom give unguarded advice, for advice is a dangerous gift, even from the wise to the wise, and all courses may run ill.[‘]

Lawyers, like Elves, are very guarded in what they say, especially to non-clients.  This is because (in part) whenever a lawyer gives advice, the lawyer is opening himself up to being sued for giving that advice.  Non-clients often approach a lawyer, give a 15 second fact pattern to the lawyer, and expect the lawyer to tell the non-client what to do.  This is very dangerous territory — a lawyer cannot give proper advice until he has thoroughly investigated the facts and law of a case.  But, even after a thorough investigation, the lawyer might still be counseling a client in a realm full of unknowns and variables.  The end result to the client may be bad despite competent representation and sound advice from the lawyer.  This is because “all courses may run ill.”

With all that said, what is the best way to get a clear answer out of a lawyer? Pay the lawyer.  The lawyer will gladly incur professional liability and wrestle with gray issues when he is paid for his advice.

Jeremy J. Richey, Attorney at Law
© Jeremy J. Richey and The East Central Illinois Criminal Law & DUI Weblog, 2008-2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.