Criminal defense

He did what he was trained to do….

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Chicago Detective charged in fatal off-duty shooting

By Stacy St. Clair and Jeremy Gorner

Tribune reporters 9:31 a.m. CST, November 25, 2013

In a rare move, Cook County prosecutors charged a Chicago police detective with involuntary manslaughter today for an off-duty shooting in which he killed an unarmed woman.

Detective Dante Servin, 40, becomes only the second officer since 1997 to be charged in connection with a shooting. He was also charged with reckless discharge of a firearm and reckless conduct, and  is expected in bond court later today.

Servin, who joined the department in 1994, has cooperated with investigators and met with prosecutors at his home in January to walk them through his version of events, his criminal defense attorney Thomas Brandstrader said.

Read More Here:

http://www.chicagotribune.com/news/local/breaking/chi-detective-charged-with-involuntary-manslaughter-in-fatal-shooting-20131125,0,3103535.story

A wrong has been corrected……will any one have to answer for this injustice?

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suntimes

State’s attorney sets aside convictions in rape, murder

BY RUMMANA HUSSAIN AND STEFANO ESPOSITO

Staff Reporters

Last Modified: Sep 10, 2013 05:31PM

Carl Chatman walked out of the Dixon Correction Center Tuesday afternoon and into the arms of his tearful sisters and brother. His sister Dretha Miller threw her arms around his neck and cried, saying, “It’s over.”

Chatman’s siblings­ — Miller and Theresa and Willie Chatman ­— drove to Dixon to meet their brother after the Cook County state’s attorney’s office officially set aside his conviction for a 2002 rape at the Daley Center. State’s Attorney Anita Alvarez — citing “failures of the past” — also set aside the conviction of Lathierial Boyd, sentenced to 82 years in prison for fatally shooting one man and paralyzing another man outside Wrigley Field in 1990.

“Our work as prosecutors is about seeking justice, even if that measure of justice means that we must acknowledge failures of the past,” State’s Attorney Anita Alvarez told reporters at the criminal courthouse at 26th and California.

“Justice was certainly delayed for Mr. Boyd and for Mr. Chatman, but we are hopeful that with today’s actions, it will not be denied,” Alvarez said.

Read More here:

http://www.suntimes.com/news/crime/22478152-418/states-attorney-sets-aside-convictions-in-rape-murder.html

Contributing: Mary Mitchell

Copyright © 2013 — Sun-Times Media, LLC

Time heals all wounds…

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Murder conviction reversed because of lapse in time

By Pat Milhizer
Law Bulletin staff writer

In a case that features the longest time lapse between a crime and witness identification in Illinois, a state appeals panel reversed a man’s murder conviction Tuesday mainly because the eyewitnesses didn’t identify the alleged gunman until more than 30 years after the shooting.

“The Appellate Court took the standard of evidence and held it dear,” said Thomas C. Brandstrader, a sole practitioner who represented the defendant. “They held it to what it should be, and that’s beyond a reasonable doubt.”

In 1971, Flores Sanchez was killed and Gilberto Cruz was wounded by gunshots that were fired in a Chicago bar.

Police identified Luis Vega as a suspect, but a detective couldn’t find him at home.Vega also didn’t report to work on the Monday after the shooting.

The cold case got warm in 2004, when authorities found Vega in New York after he applied for retirement benefits. An agent with the Social Security Administration who reviewed the application noticed that Vega had an outstanding arrest warrant.

A Chicago police detective went to New York and reported that Vega said his memory of 1971 was “fuzzy.” The detective said he asked Vega if he killed Sanchez, and Vegareplied that if he did, he didn’t remember doing it.

Vega was arrested in 2005 and brought back to Chicago, where he opted for a bench trial. The prosecution presented two witnesses with a photo of Vega that was taken in 1961, a decade before the crime.

Both Cruz and the bartender who saw the shooting identified Vega as the killer from the photo. But neither of the witnesses testified that they identified Vega as the shooter in 1971.

A New York detective testified and said at the time of arrest Vega said he “understood what was happening and had made peace with God,” according to the appellate opinion.

Cook County Circuit Judge Kenneth J. Wadas found Vega guilty, saying the two eyewitnesses and the New York detective were credible. The judge also found thatVega was “spontaneous” in his statements to the New York detective, which constituted a confession.

Because Illinois had indeterminate sentencing at the time of the crime, Wadas sentenced Vega to between 14 and 20 years for murder and six and 18 years for attempted murder.

Vega appealed, contending that he wasn’t proved guilty beyond a reasonable doubt because the witness identifications were unreliable. He also argued that the state’s circumstantial evidence failed to connect him to the shooting.

The 1st District Appellate Court agreed and reversed the murder conviction in a 12-page unpublished order written by Justice Mary Jane Theis. Justices Joy V. Cunningham and Themis N. Karnezis concurred.

The panel held that even though the length of time between a crime and an identification doesn’t necessarily render the identification untrustworthy, it does affect the weight that should be given to the identification. In the 1972 decision in Neil v. Biggers, the U.S. Supreme Court held that a lapse of seven months would be “a seriously negative factor in most cases.”

“Thus, a 34-year lapse in time must be weighed and considered exponentially less reliable,” Theis wrote.

It is also “highly significant” that neither Cruz nor the bartender testified that they gave a description of Vega to police in 1971, the panel ruled.

The prosecution maintained that the fact that Chicago police initially began looking forVega indicates that Cruz and the bartender must have identified Vega as the shooter. But it would have constituted inadmissible hearsay if the Chicago detective who started the investigation in 1971 was allowed to testify that his interview with a witness led to the warrant being issued, the panel held.

The panel also pointed out that the two witnesses didn’t testify about the level of certainty that they had with their identification of Vega.

And neither witness identified Vega in court, the panel noted. Instead, they relied on a photo that was taken 10 years before the crime.

The panel also noted that there was no physical evidence linking Vega to the shooting. Furthermore, Vega’s statement that he had “made peace with God” didn’t qualify as a confession, the panel ruled.

As for Vega’s decision to leave Chicago, the panel cited case law stating that “flight alone is not necessarily indicative of criminal activity. … It must be considered in connection with all of the other evidence.”

The state was represented by former prosecutor James E. Fitzgerald and Assistant State’s Attorneys Samuel Shim and Michele I. Lavin. The office will ask the Illinois Supreme Court to hear the case.

For the defense, Brandstrader was assisted by attorney Augustus F. Moss.

The case is People v. Luis Vega, No. 1-08-1532.

Self Defense and the Second Amendment…

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Benforado on Weapons and the Increasingly Dangerous Right to Self Defense

Adam Benforado (Drexel University – Earle Mack School of Law) has posted Quick on the Draw: Implicit Bias and the Second Amendment (Oregon Law Review, Vol. 89, No. 1, p. 1, 2010) on SSRN. Here is the abstract:

African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us – our friends, family, and neighbors – who show no animus toward African Americans and who profess genuine commitments to equality.

Our commonsense narratives about racism and guns – centered on a conception of humans as autonomous, self-transparent, rational actors – are outdated and strongly contradicted by recent evidence from the mind sciences.

Advances in implicit social cognition reveal that most people carry biases against racial minorities beyond their conscious awareness. These biases affect critical behavior, including the actions of individuals performing shooting tasks. In simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks. Yet, studies suggest that people who carry implicit racial bias may be able to counteract its effects through training.

Given recent expansions in gun rights and gun ownership – and the hundreds of thousands, if not millions, of private citizens who already use firearms in self-defense each year – this is reason for serious concern. While police officers often receive substantial simulation training in the use of weapons that, in laboratory experiments, appears to help them control for implicit bias, members of the public who purchase guns are under no similar practice duties.

In addressing this grave danger, states and local governments should require ongoing training courses for all gun owners similar to other existing licensing regimes. Such an approach is unlikely to run into constitutional problems and is more politically tenable than alternative solutions.

November 11, 2010 | Permalin

The Death Penalty….

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Goodman, Caldwell & Chase on Transparency in Death Penalty Decisions

Christine Chambers Goodman (pictured), Harry M. Caldwell and Carol A. Chase (Pepperdine University – School of Law , Pepperdine University – School of Law and Pepperdine University) has posted Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions (Temple Law Review, Vol. 82, 2009) on SSRN. Here is the abstract:

In this Article, Professors Goodman, Caldwell, and Chase address prosecutorial arbitrariness of charging decisions in capital cases.

After outlining the constitutional limits on imposing the death penalty established as a result of the Supreme Court’s decision in Furman v. Georgia, the authors discuss the study that they conducted on behalf of the California Commission for the Fair Administration of Justice (CCFAJ). In this study, the authors surveyed California district attorneys to learn more about how they decide whether to seek the death penalty in qualifying cases, and sought statistical information about each death-eligible case. The response to this survey by the California district attorneys offices, as outlined in this Article and discussed more fully in the authors’ report to the CCFAJ, was limited, with nearly one-third failing to provide any response at all, and only fourteen of the fifty-eight offices completing the survey in full.

The authors then provide an expanded analysis of prosecutorial arbitrariness in charging decisions in all thirty-seven U.S. states that still allow death sentences. They focused on each state’s statutory scheme setting forth criteria for seeking the death penalty, and determined that the more expansive the list of death-qualifying criteria is, the greater the potential for prosecutorial abuse of discretion in filing capital cases. The authors also provide the following statistics for each state between 1996 and 2006: state population, number of statutory foundational death qualifiers, number of death sentences, number of sentences to life without parole, and the number of sentences for premeditated murder.

This is followed by a discussion of the Federal Death Penalty Act and the Federal Protocol in filing death penalty cases. The authors suggest that these be used as models to reduce the potential for prosecutorial arbitrariness in capital cases. They also address the need to balance prosecutorial discretion with fairness in seeking the death penalty.

Finally, they provide several suggestions for for ensuring a more just use of capital punishment. These include narrowing the statutory categories of death-eligible crimes, implementing and following publicly disclosed charging criteria and procedures, increased and centralized review of charging decisions, curtailing the ability of elected officials to seek the death penalty, judicial review of charging decisions, and improved record keeping for capital case statistics.

How long will Miranda last…..

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I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

In response to all of this chaos, I’ve drafted a new and improvedMiranda warning.  Granted, this warning would be a bit more cumbersome for police to deliver, and still wouldn’t answer every possible question.  But it would be an improvement.  Here it goes:

“I first have to read you these rights before you tell me your side of the story, okay?  First, you have the right to remain silent.

  1. Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
  2. But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).
  3. On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you.  This is only fair.  Florida v. Powell, 130 S. Ct. 1195 (2010).
  4. If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense.  So, you might want to talk to me now so you don’t look guilty later.  Jenkins v. Anderson, 447 U.S. 231 (1980).
  5. But, anything you say to me can be used against you in court.  (I’m not sure if this includes the things that you say in order to remain silent.)
  6. You have the right to an attorney.
  7. But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it.  Don’t ask me, for example, “Could I get a lawyer?”  This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you.  However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).
  8. If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line.  Then you might be on your own.
  9. And don’t say “I can’t afford a lawyer but is there any way I can get one?”  As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.”  The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?”

Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) as well as articles on criminal and constitutional law, available here.