Recommended reading: Tyler Clementi Article Reveals Complexities to this Tragedy

I highly recommend this article by Ian Parker for the New Yorker about Tyler Clementi and his roommate, Dharun Ravi.

You may recall that Tyler was the Rutgers freshman who jumped off the George Washington Bridge a few days after discovering that his roommate had “recorded” (I put it in quotes because that is not quite what happened) two sexual encounters with another man and “put it on the internet” (again, not quite the truth).

While in the popular imagination, this tragic story is about bullying and homophobia, and possibly religious intolerance and ethnic differences, Mr. Parker’s story reveals even more complexities to the case.

Among the issues touched upon include:  social awkwardness (both boys shared a 16′ by 11′ room, yet barely had any direct interaction.  It wasn’t for lack of interest, as both spend time investigating one another on the internet);  mental health issues (Tyler, in retrospect, had a peculiar interest in bridges for a year, and Dharun was very interested in watching people on webcams); sexual jelousy (“shy and awkward” Tyler immediately hooked up with an older man while his roommate apparently remained a virgin); class (each boy thought the other was beneath his status), what happens when young people gossip and get caught up in group thought, and youthful male hormones (practical jokes, suicidal thoughts).

The article also hits upon how this case was political from the get-go, and how the prosecution of Dharun was over-charged as a result.

Definitely a must-read.  Here’s the link:  The Story of a Suicide by Ian Parker.

Chicago Police Chief Endorses Law Allowing Citizens to Video Cops

In another sign that HB3944 (allowing citizens to video record police officers) is gaining momentum, Chicago Police Superintendent McCarthy has gone on record as stating that he is in favor of the proposed change.

Superintendent McCarthy points out that video can be helpful to officers in  disproving false claims of police brutality.

I would also point out that video-recording can act as a deterrent to actual brutality cases, because the presence of cameras might inhibit police officers from doing anything that might prove embarrassing if seen on youtube.

Case Dismissed, but it sure took a while.

A question that I am often asked is, “how long will it take to resolve my case”? And even though I have been handling DUI cases on a daily basis for 17 plus years, I really can’t say. Every case is unique. Also, in some courthouses there are unwritten rules and practices that causes to remain on the court call for a longer period than anywhere else.

Today I finally wrapped up a case which began with an arrest 20 months ago.

The basic facts of the case were that two tactical officers were riding in an unmarked squad car when they heard my client driving on Western Avenue playing loud music. They effectuated a traffic stop, and upon determining that there was open alcohol in the car, and that my client had slurred speech and red, bloodshot eyes, arrested him for DUI. No field tests or breath test were conducted.

On the second court date, 18 months ago, the client’s summary suspension was rescinded because the Judge hearing the case determined that the police lacked reasonable grounds to believe that my client had been under the influence of alcohol.

In most courthouses, the companion DUI criminal case would be dropped immediately after a judge finds no reasonable grounds to arrest. That is because in most courthouses, the same judge would hear any future motions or the trial, so why waste the judge’s time?

However, the Chicago Traffic Court is different. Traffic Court is where new judges are first assigned. The judges there are rotated daily to different courtrooms or sent to other courtrooms throughout Chicago. As openings arise in other divisions, the judges are transferred out, permanently.

This constant change means that if the State’s Attorney loses a suspension hearing, they might as well continue the case and hope for a different result on another court date when they have a different judge.

Thus, the case continued after the finding of no reasonable grounds.

A few months later, we had a hearing on my “Motion to Suppress” which basically argued the same thing as my “Petition to Rescind the Summary Suspension” except now the issue was the underlying DUI case.

A different judge heard the case, but the results were the same: no probable cause to arrest for DUI. As a result, all evidence obtained after the client was arrested was suppressed from evidence as a result of the illegal search.

This was not the end of the case, however.

Next, the State’s attorney filed a “Motion to Reconsider” arguing that the Judge was incorrect, and that the arresting officer did have sufficient legal justification to arrest my client. After both sides filed written briefs arguing their cause, the Judge denied the motion, in a written opinion.

You would think THAT would be the end of the case, since now all the State had left of their case was the evidence which two judges had found insufficient to even justify a DUI arrest, let alone proof beyond a reasonable doubt If you thought that, you were wrong.

The State’s Attorney insisted that they would not drop the case, even though there was no logical way that they could prove the DUI case after the court’s ruling.

So the case was set for trial, in August. But the officers did not appear, for medical reasons, so it was continued. I demanded a speedy trial under the Illinois Code 725 ILCS 5/103-5(a) and (b). The case was continued to November, and the officers again did not appear. It was continued again in December and then to today, the final date under the speedy trial act, when the case was dismissed because the officers were still not able to come to court.

In the end, this case resulted in fifteen court dates. The same exact case might have been resolved in two at another courthouse. Or maybe five or six tops if the State had not insisted on a trial even after the motion to suppress had been granted and they had no chance of winning.

I objected to all the State’s continuances, but they were given, because that is the standard and practice at Chicago Traffic Court — to give the state at least the entire 160 days of continuances under the Speedy Trial Act (and sometimes a judge will extend the term, as they can under the statute). In contrast, at other courthouses in Cook (the SAME county!), once a case is set for trial, it doesn’t get continued unless for good cause, and then, only once or twice and that’s it.

And in case you are wondering — I charge flat fees for DUI cases, not an hourly, so I don’t benefit from alll these extra court dates.

Just a little glimpse into the often absurd practices of Chicago courtrooms.

Here is yet another example of how NOT to act when you are being arrested for a DUI, courtesy of former major league pitcher Curtis Leskanic. Pay particular attention to the conversation in the squad car. BTW, this is not safe to play at work unless you turn the sound all the way down (but then you would miss all the fun).

New Ruling limits police from fishing expedition no-refusal urine tests

A new appellate decision was released this week that deals with what has be known as “no-refusal” situations.

In People v. Miranda, 2012 IL App (2d) 100769 an Elmhurst police officer pulled over the defendant for traffic violations.  Upon speaking with the driver, he noticed an odor of alcohol on his breath, bloodshot and glassy eyes, and a flushed face.  There was open alcohol in the vehicle, and the defendant admitted to have been drinking at a strip club.  Mr. Miranda failed three field sobriety tests, and was arrested for a DUI.  It was determined that his driver’s license was revoked for a prior DUI.

Mr. Miranda refused to consent to a breath test, and the officer sought a search warrant for collection of his blood and urine.  In the affidavit, the officer stated that he believed that Mr. Miranda was under the influence of “alcohol and/or drugs.”  The search warrant allowed for the collection of blood and urine to be tested for alcohol, drugs or controlled substances.

At a hearing, it was revealed that while defendant’s blood was tested for alcohol only (not drugs), his urine was tested for cocaine and cannabinoids only (not alcohol).

After several hearings, the results of the urine test (for drugs) were suppressed, and this ruling was affirmed by the Appellate Court.

The gist of the ruling was that the officer only had probable cause to suspect the defendant of driving under the influence of alcohol, not drugs.  Mr. Miranda admitted drinking, he smelled of alcohol, there was alcohol in his car.  He failed sobriety tests that are used to determine whether a person is intoxicated.  The officer arrested him for driving under the influence of alcohol.  Nothing was apparent to suggest narcotic usage.  The request to test for alcohol, drugs or controlled substances seemed like a “fishing expedition” in hopes of finding some additional evidence.

The court was wise in not allowing wide-open testing for drug usage, without any probable cause for it, whenever there is a DUI arrest.  If this was permissible, and probable cause were not required, then what would prevent the police from ordering everyone who pulls up at a roadblock to take a breath test or provide a blood or urine sample?

Today’s U.S. Supreme Court GPS Tracking Opinion

Today, the United States Supreme Court issued its opinion in United States v. Jones, Case No. 10-1259, otherwise known as the “GPS tracking” case.

The facts in Jones were quite simple:  Antoine Jones was suspected of being a drug dealer.  The government obtained a warrant to install a GPS device on his wife’s Jeep.  Two conditions though:  the GPS had to be installed in the District of Columbia within 10 days.  In fact, it was installed in Maryland on the eleventh day.  Ooops.

A lot of data was obtained during the four weeks that the GPS was on the Jeep, and it was used to indict Mr. Jones of conspiracy.  He was eventually convicted and sentenced to life imprisonment.

That life sentence was overturned by the Apellate Court.  The United States Supreme Court affirmed that ruling, holding that a person has a right to be free from unreasonable searches and that the installation of the GPS was a warrantless search in violation of the Fourth Amendment of the United States Constitution.

One thing that I found quite interesting is that the the Court seemed to place special reliance on a 1765 English trespass case, Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765).  This is strange, since Entick is (1) an English case (2) that pre-dates the U.S. Constitution (3) is almost 350 years old and (4) is a civil trespass action, not criminal.

Which is not to say that Entick is irrelevant; it clearly gives us a better understanding of what the Founding Fathers’ believed to be their property rights and by extension, what they meant by freedom from unreasonable searches.

So why is this interesting?  I think that if you were to study expectations of privacy at the founding of our nation, you would see that they were radically different from what they are now.  In some ways, they were more expansive, in other ways, less.  For example, it would be very unlikely that a Judge in 1800 would grant the government a warrant to to retrieve and read your personal diary.  It would be considered a terrible infringement on one’s own sovereignty.  Yet nowadays, we don’t expect any special privilege to keep the government from doing so.

Nor do we think it there is anything wrong when the police make you stop at a roadblock to see if you have been drinking, and then if they suspect that you have, they order blood to be drawn from your veins to be used against you in a criminal prosecution.  I suspect Thomas Jefferson would be aghast at something like that.

Then again, Jefferson didn’t have too much of a problem owning slaves.

In any event, I am curious to see whether the Court is moving in the direction of re-setting our expectations of privacy back towards what our forefathers expected in the 18th Century?  Or was this just a one-time flourish of legal scholarship?  Time will tell.

Another example of why police should be video-recorded.

Today’s post touches on a few of the recurring topics of my blog.

We have a Melbourne, FL police officer who savagely beat a senior citizen.  Not only was he old, unarmed and did nothing to provoke the officer, the victim had serious heart issues (he had undergone a triple bypass) and was suffering from Alzheimers.  He ended up in the hospital for a month.

The officer attempted to turn off his squad dash camera before inflicting the beat-down.

Obviously, the beating was intentional and with malice aforethought.

The officer wrote in his report that the senior citizen had come at him quickly, and that he thought he had a knife.  None of this is supported by the video.

As it turns out, the video was salvaged from the hard drive (but not the audio, which, according to witnesses, would have included the victim’s nephew yelling about his heart condition).

I have pointed out a few times on this blog that officers do not like dash cam videos.  Former Chicago Superintendent Jody Weis told Chicago Public Radio that he had a problem with several Chicago officers turning off their cameras.  We have also recently seen several Chicago Police Officers arrange to have a “blue light camera” turned away during a police action allegedly involving excessive force.

I have also discussed several times about how in Illinois it is a class one felony (punishable from four to fifteen years in prison) to video record police.  The police union has fought hard to keep this law in place.  Apparently, they want to make it easier for officers to mistreat citizens and otherwise disobey orders without consequences.

Hopefully, House Bill 3944, which would allow citizens to record police while they are acting in public on official duty, will soon be enacted into law.

I was tipped off to this story by Jonathan Turley’s blog.