Here are the top 13 criminal law cases from the Illinois court system for March 2016. The first 4 are from the Illinois Supreme Court. Number 4 was a victory for the defense at the lower level and the Illinois Supreme Court had something to say about that.
- People v. Burns
The “no-nights visits” rule is affirmed, can’t bring the sniffer dog to your front step for a little sniff action.
- People v. Bradford
Prosecution no longer allowed to overcharge an ordinary retail theft to a burglary.
- People v. Clark
Aggravated vehicular hijacking and armed robbery without a firearm are not lesser-included offenses of aggravated vehicular hijacking and armed robbery with a firearm.
- People v. Timmsen
Apparently, the police can stop you for trying to legally avoid a roadblock.
- People v. Abram
Officers approach defendant who was sitting in his car he then, to say the least, ensues in outright flight.
- People v. Smith
This trial judge was overruled; there is nothing unconstitutional about requesting citizen’s to roll up their sleeves.
- People v. Thompson
Some of the State’s remarks relied on questionable advocacy, but did not rise to the level of clear and obvious error.
- People v. Meuris
In a leaving the scene of an accident prosecution the State must not only prove that Defendant knew he was involved in an accident but also that another person was involved.
- People v. Weinke
Reviewing court says ASA exaggerated the severity of victim’s condition and misled the court as to the source and timing of her information in order to pressure the court into granting a quickie deposition.
- People v. Tayborn
Trial counsel was ineffective for not challenging defendant’s confession given without Miranda warnings.
- People v. Little
Cigarette break is not a sufficient amount of time to remove the taint of the original Miranda violation.
- People v. Gray
These drug officers were themselves charged with distributing narcotics and Defendant was not told about the investigation before he plead guilty to his own drug charges.
- People v. Fulton
In a charge of armed habitual criminal the same conviction can be used as one of the predicate offenses as well the predicate to the UUW Felony conviction that may be being used.
Sila Luis says she didn’t do anything wrong. The United States government says she defrauded Medicare for millions of dollars through kickbacks and overbilling. Now the government is putting her on trial to answer for these serious criminal charges, and Luis wants to hire the best lawyer she can afford. One problem: The government has frozen all her assets, including those completely untainted by the alleged fraud.Luis says the asset freeze violates her Sixth Amendment right “to have the assistance of counsel for [her] defense.” The government said it doesn’t: She can still hire counsel; she just has to find one who’ll represent her for free.
On Wednesday, the Supreme Courtsided with Luis in an important victory for the Sixth Amendment—which could use a friend these days. In his plurality opinion, Justice Stephen Breyer reminded the government that the Assistance of Counsel Clause grants a defendant “a fair opportunity to secure counsel of his own choice.” (Emphasis mine.) Put differently, the Sixth Amendment shields a defendant’s “right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” The government “would undermine the value of that right by taking from Luis the ability to use the funds she needs to pay for her chosen attorney.” So Luis must be permitted to pay her preferred lawyer with untainted funds.
Breyer acknowledges that the government has a “contingent interest in securing its punishment of choice (namely, criminal forfeiture),” and that victims have an “interest in securing restitution.” But these interests do not “enjoy constitutional protection,” and, “compared to the right to counsel of choice, these interests would seem to lie somewhat further from the heart of a fair, effective criminal justice system.” Breyer’s opinion was joined by Chief Justice John Roberts, Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor. Justice Clarence Thomas concurred with Breyer, but only in the judgment. Breyer, Roberts, and Sotomayor are surely pleased by Luis’ outcome: They dissented from a recent opinion which held that a criminal defendant indicted by a grand jury has virtually no right to challenge the forfeiture of her assets. Luisdoesn’t necessarily cut back on that decision, but it does send a clear message that the Sixth Amendment’s Assistance of Counsel provision remains robust.
In a separate opinion, Thomas criticized Breyer for implying that courts may sometimes balance a defendant’s interest in hiring counsel against the government’s interest in freezing assets. “The Sixth Amendment guarantees the right to counsel of choice,” Thomas explains. “As discussed, a pretrial freeze of untainted assets infringes that right. This conclusion leaves no room for balancing.”
The Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets before trial simply to secure potential forfeiture upon conviction. If that bare expectancy of criminal punishment gave the Government such power, then a defendant’s right to counsel of choice would be meaningless, because retaining an attorney requires resources. … An unlimited power to freeze a defendant’s potentially forfeitable assets in advance of trial would eviscerate the Sixth Amendment’s original meaning and purpose.
For what it’s worth, I think Thomas is absolutely correct, although his separate concurrence drew no other justices. (Might Justice Antonin Scalia have joined it were he still alive?) Still, Sixth Amendment supporters should be pleased with the final outcome of the case. A government that can prevent a legally innocent person from hiring her preferred lawyer is a government unrestrained by the Sixth Amendment’s strictures. Make no mistake: Luis is a triumph for the right to counsel, at a time whenit is in desperate need of a win.
What is a deposition?
In about 30 years of working in the law I have seen many documents used to prepare witnesses for deposition. I decided to write one that would be easily understood by the typical lay witness. This article is not legal advice. It is a compilation of advice given by various attorneys, which I hope you will find useful.
If you use this for a client, it should be provided on the attorney’s letterhead with this cautionary language at the top: Note: This document is privileged and confidential. Do not show it to anyone. Read it several times before giving your deposition.
PREPARING FOR YOUR DEPOSITION
Your deposition is extremely important and will affect your case in many ways. You must understand everything in this preparation document before being deposed. A deposition is a device commonly used in the “discovery” phase of a lawsuit, before trial. All parties in a lawsuit, through their attorneys, have a period of time after a suit is filed in which to discover facts about a case in order to prepare for trial. Depositions and interrogatories (questions to be answered in writing under oath) are two of the most commonly used.
In a deposition, the witness (you in this case) is called the deponent and is sworn to tell the truth (by the court reporter, who is neutral) before any questions are asked. Attorneys will attend for both sides and the attorney for the opposing party will ask you questions, while the court reporter takes everything down to provide everybody with a copy. Portions of the transcript will probably be used in the trial.
The opposing attorney also wants to get your testimony committed to writing. Warning: everything you say will be used against you, and it is the opposing attorney’s purpose to get you to say something that will hurt your case. Your deposition is not for your benefit; it is for the benefit of the other side. You must resist the urge to tell your story or vindicate yourself or justify your actions. You must answer the questions as briefly as possible and never volunteer information. You will have your chance at trial, when your attorney is asking the questions. So listen carefully to each question, think before answering, and answer concisely-with a “yes” or “no” if possible.
Depositions are not the trial, even though they may be used at trial. Depositions are informal proceedings, usually taken in an attorney’s office, and the judge is not present. They usually last two to six hours sometimes less. The scope of questions is unlimited, and attorneys have the right to ask broad questions on topics that may seem irrelevant. Many topics are covered in depositions that will never be admissible at trial. You must answer all questions unless your attorney instructs you not to answer (another reason for listening to the complete question and taking time before answering).
The opposing attorney may act like Mr. Nice Guy, and you should be polite, but always remember: his duty is to try to help his client by weakening your case. Do not trust him and always remain mentally sharp. Some opposing attorneys will be short and snappy with you, and at times may seem hard-lined and relentless in questioning you. Despite the tactics by opposing counsel, you must remember that he/she is not your friend. Your only friend in the deposition is your attorney.
Your attorney will not ask you any questions. He is there to protect you from improper questioning. Remember: this is not the place to tell your story, but only to give facts as you know them. If your attorney begins to speak, you must stop talking. If the attorneys enter into discussions, you are not to say a word, but listen carefully to what is being said. If your attorney makes an objection, remain silent until he/she tells you to answer. If your attorney instructs you not to answer, do not answer no matter how angry the other attorney becomes or how harmless the question may seem to you.
Getting Ready for Your Deposition
First read this document several times and make sure you understand all of it. If not, ask your attorney or his staff about anything you do not understand. Then review any interrogatories you have answered, because the other attorney will probably use them at your deposition. Read the pleadings and motions that have been filed and go over them with your attorney if you have questions about them.
The other side has the right to ask you to bring documents to your deposition. If you have not been asked to bring anything, do not bring anything. If you have been asked to do so, do your best to gather the documents requested, even if it means getting them from a lockbox or storeroom. Review all documents with your attorney before your deposition. If you have not been asked to bring any documents, but you have documents you think you should bring, discuss it with your attorney.
Important: Letters between you and your attorney and his/her staff, and any documents prepared in connection with the lawsuit are privileged and confidential and never should be produced. These documents may be privileged under the attorney-client privilege or under the work-product privilege. If you produce even one of them, you may forfeit the privilege for all of them. If any documents requested by the other side are privileged and confidential, let your attorney know immediately.
Your attorney or his staff will meet with you before your deposition to prepare you further. Do not hide anything from your attorney. You must be totally truthful with your attorney (and that includes his/her staff) and you will not be fully protected if there are things the other side may know that your attorney doesn’t know. Be candid in all respects and rest assured that everything you say to your attorney or his staff is privileged and confidential. Think of any bad things the other side could possibly know and be sure to let your attorney know about them.
The Deposition Itself
Dress neatly. The best outfit is comfortable business attire, with nothing flashy, nothing offbeat, nothing dirty, nothing sloppy. Remember, the other attorneys are evaluating you as a witness. If you will be making a good impression on the jury at trial, your testimony is more valuable.
Produce requested documents and answer truthfully. Your duty is to answer each question as truthfully as you can, but also with as short an answer as possible. Before answering any question, remember to look straight at the attorney asking the question, listen carefully, pause at least two or three seconds to think, and then give your short, concise answer politely and calmly. For most questions, a “yes sir” or “no sir” or “I don’t know” is sufficient. If you say more than three sentences, you have probably said too much. Remember to do this with each question, so that every answer is formal and controlled and you are controlling the tempo of your deposition.
Always be polite. Your conduct and demeanor may be more important than the answers you give. Try to make a good impression. Relax and remain calm, trying not to show nervousness. (You will be nervous, but try not to show it.) Always respond courteously. Always refer to the attorneys as “Mr.” or “Ms.” Speak up positively with assurance.
You may consult with your attorney. If you have questions or concerns about your potential answer, you may ask the opposing attorney, “May I consult with my attorney?” You may then either talk privately at the table or go outside to discuss it with your attorney. Do not be afraid to ask your attorney questions if you feel it important, but keep these consultations to an absolute minimum. Your attorney cannot tell you how to answer but can help clarify the question. Never answer a question with a question or rhetoric.
Your testimony must be truthful. Tell the truth, the whole truth, and nothing but the truth, but only in response to questions, and with short answers. If you do not tell the truth, you could be subject to criminal prosecution for perjury. If you are caught not telling the truth, it will hurt your credibility and therefore, your case. You must answer every question truthfully.
Answer only from your personal knowledge. Never volunteer an opinion unless specifically asked to do so. Never guess or speculate. Guessing or speculating is not truthful. Do not do it. Don’t let the opposing attorney fool you into making statements outside of your personal knowledge or about something you do not remember.
Testify in your own words. Don’t let opposing counsel put words in your mouth. Stay with your version of the facts as you know them. One tactic some attorneys use is to say “Well, is it fair to say that . . . ?” If he/she uses this tactic and attempts to summarize parts of your testimony, listen carefully and do not agree unless it is exactly true in all respects; if not, state that you do not agree with his/her summary.
Do not be intimidated. The opposing attorney may make an insinuation or express an opinion that you are not telling the truth. This is an old trick and you should not fall for it. He/she may say something like, “Do you mean to tell me that you’re willing to sit here under oath and swear to that?” Remain calm, look him/her in the eyes, and say, “I have just testified to that fact under oath.” The opposing attorney may speak with a raised voice and seem hateful, but your attorney will not let you be badgered or let things get out of hand.
Be careful of questions dependent on your memory. If you are asked about something that happened long ago and you do not remember the date or time, just say so, and do not guess. Nobody expects you to remember every fact of your life. If pressed for dates, you can say, “To the best of my knowledge, it was around that time.” If you don’t remember, say so. Often, the truthful answer to a question begins with “To the best of my knowledge at this time.”
If you don’t know, say so. Again, do not speculate and do not guess. If you do not know the answer to a question, just say, “I do not know.” Do not assume anything. Another old trick is for the opposing attorney to pull out a piece of paper and read it to himself, then ask you if you remember writing a letter to [name] that said [facts]. Don’t be fooled into admitting something of which you are not sure. Don’t say, “I guess so” when the truthful answer is “I do not remember writing such a letter.”
Don’t give long, rambling answers. The opposing attorney will always gain an advantage if you talk too much. Never ask to explain your answer before giving it. And don’t explain your proper “yes sir” or “no sir” answer, either. You must not volunteer information that is unsolicited ever. An example: You are asked to “State the highest degree of education you have earned.” Many witnesses respond: “Well I graduated high school and then went to college for two years.” This is volunteering information. The correct answer is “a high school diploma.” You will only hurt your case and help the other side’s case if you volunteer information, no matter how harmless it may seem.
Don’t give an opinion unless asked. Just answer with facts and never give your opinion or belief unless asked for it. Again, this is volunteering information and can only hurt your case.
Finish your answers. If you do have a long answer, and the other attorney interrupts you when giving your answer, you should politely insist on finishing your entire answer. Just state that you were not through with your answer and insist on being allowed to finish it.
Use care with documents. If you are asked about a certain document, you should ask to see the document before answering. But never refer to a document to refresh your memory without first discussing it with your attorney. In some states, if a deponent is asked a question and stops to look at a document to refresh his/her memory, the document must be disclosed even if it is a privileged document.
Always keep your guard up. Everyone is nervous about giving a deposition. It is only natural. Sometimes a deponent will begin to relax as the deposition progresses and they may even actually begin to enjoy being the center of attention. Avoid this feeling. It is dangerous and leads to your forgetting the rules outlined in this article. Remain alert, be on guard, sit up straight, and remember to:
a. Look and listen
b. Pause and think
c. Answer briefly
Remain polite and courteous, keep your guard up, and don’t let the opposing attorney talk you into hurting your case. Never let yourself be provoked into anger, arguing, or being upset.
Nothing is “off the record.” The court reporter is taking down every word. An attorney may ask you for an answer “off the record,” but do not fall for it. The only thing off the record will be discussions among attorneys when the reporter has been instructed to stop recording.
After Your Deposition
Provide information if agreed. During the deposition, you and your attorney may agree to produce something to the other side. Locate it immediately after the deposition and deliver it to your attorney as soon as possible.
Correct errors in the transcript. You will have a limited time to make any corrections after the court reporter has typed the transcript. Read it carefully and make all corrections. If you don’t do so within the time period, which may be as few as 20 days, you will not be able to correct it later and you will be stuck with it at trial. Follow your attorney’s advice regarding making the corrections.
Answers may need to be supplemented. In some states you are required to supplement any answers you gave at a deposition. If you are asked a question in a deposition, and your answer later changes, you must let your attorney know. For example, you may be asked for names of witnesses, and after your deposition you learn of another witness. You must give that new information to your attorney immediately.
Review your deposition before trial. Make sure you re-read your deposition testimony before you get to trial. Most cases settle and never reach trial, but not all cases settle. If you are going to trial, it is critical that you know everything you have said under oath, whether in a deposition or interrogatories.
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KENTUCKY SENATE PASSES GOP BILL ALLOWING DISCRIMINATION AGAINST INTERRACIAL COUPLES
Despite being legal in the United States since 1967, Kentucky Republicans are trying to turn back the clock on interracial marriage by allowing discrimination against interracial couples.
A bill moving forward in the Kentucky Senate would give private businesses and public institutions the right to discriminate against basically anyone they want to as long as they hide behind their Bibles when they do it.
In other words, interracial couples, Muslims, atheists, and gay people can be denied services by businesses and the government for religious reasons even though federal law explicitly forbids discrimination. While the bill does not expressly mention these groups, it is so broad that it might as well.
According to SB180:
‘Protected activities’ means actions by people commissioned, employed, hired, retained, or otherwise used by the public or the government to provide customized, artistic, expressive, creative, ministerial, or spiritual goods or services, or judgments, attestations, or other commissions that involve protected rights;
‘Protected activity provider’ means a person who provides protected activities; and
‘Protected rights’ means the rights of persons to be free from governmental actions that impair, impede, infringe upon, or otherwise restrict the exercise of any right guaranteed by the United States Constitution or the Constitution of Kentucky, including but not limited to a person’s right of conscience, freedom of religion, freedom of speech, freedom of the press, and right to peaceable assembly.
The bill even denies those who are discriminated against the ability to sue in court, which makes it even more clear that Republicans want to turn Kentucky into a theocracy where civil justice and civil rights only belong to conservative “Christians.”
It hasn’t passed yet, but considering the Senate and the House are controlled by Republicans, and Tea Party nitwit Matt Bevin is the Governor, it’s only a matter of time before this bill becomes law and drags Kentucky back to the 1950s.
U.S. Supreme Court Unanimously Reverses Alabama’s Refusal to Recognize a Same-Sex Parent Adoption from Georgia
(Washington, DC, March 7, 2016)—Today, the United States Supreme Court unanimously reversed an Alabama Supreme Court decision refusing to recognize a lesbian mother’s prior adoption of her three children in Georgia. Today’s summary reversal restores V.L. full rights as an adoptive parent.
“I am overjoyed that the U.S. Supreme Court reversed the Alabama court decision,” said the adoptive mother, V.L. “I have been my children’s mother in every way for their whole lives. I thought that adopting them meant that we would be able to be together always. When the Alabama court said my adoption was invalid and I wasn’t their mother, I didn’t think I could go on. The Supreme Court has done what’s right for my family.”
“The Supreme Court’s reversal of Alabama’s unprecedented decision to void an adoption from another state is a victory not only for our client but for thousands of adopted families,” said National Center for Lesbian Rights Family Law Director Cathy Sakimura, who is representing V.L. “No adoptive parent or child should have to face the uncertainty and loss of being separated years after their adoption just because another state’s court disagrees with the law that was applied in their adoption.”
V.L and E.L. were in a long-term same-sex relationship in which they planned for and raised three children together, using donor insemination. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live.
In September 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though V.L. raised the children from birth and both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgments from other states. Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.
In November 2015, V.L. asked the U.S. Supreme Court to Review her case, noting that the Alabama Supreme Court’s decision is unprecedented. Before this ruling, no state supreme court had refused to recognize a same-sex parent’s adoption from another state—or any out-of-state adoption—based on a disagreement with how the court issuing the adoption interpreted its own adoption laws. Under the United States Constitution’s Full Faith and Credit Clause, states are required to respect court judgments, including adoption orders, issued by courts in other states. V.L.’s request said “this Court’s review of the Alabama Supreme Court’s decision is urgently needed” because “the Alabama Supreme Court’s decision flouts a century of precedent on the Full Faith and Credit Clause and will have a devastating impact on Alabama adoptive families.”
In December 2015, the U.S. Supreme Court stayed the Alabama court’s decision, allowing V.L. to have visitation with her children while the Court considered her case.