Chicago Officer Found Guilty of Aggravated DUI/Fatality

Chicago Officer Richard Bolling

On Wednesday, a Cook County jury convicted Chicago Police Officer Richard Bolling of aggravated DUI (fatality) after nine hours of delibration.

From the news reports I have read, it appears that the evidence was as follows: After a night of drinking, Officer Bolling was speeding on Ashland Avenue when he crashed into a thirteen year old boy who was bicycling on the wrong side of the road. (What this child was doing out late at night is another story). The officer did not stop. He kept going until he was stopped by another officer who saw him driving the wrong way on a side street. Officer Bolling was brought back to the scene, where he was given favorable treatment, including being allowed to use a bathroom at a gas station several blocks away. Bolling was recorded talking to himself and making jokes with the investigating officers warning them not to eat his White Castle burgers. His fellow officers tried to avoid giving him field sobriety tests until they were ordered to by supervisors, and did not start them until two hours after the collision. The arresting officer wrote in his reports that Bolling had passed the field tests, but then he recanted that at trial, because, he claimed that after reviewing the arrest videos he had noticed “clues of impairment“ that he had previously missed. Four and a half hours after the accident, Bolling was given a breath test, (typically they are given within 30 to 75 minutes) with a result of 0.079 BAC.

From my (defense attorney) point of view, the most damaging aspects of the case were

1. There was a death. No matter what other facts are involved, or whether or not someone is actually guilty, the defendant usually pays the price when there is a death in a motor vehicle accident, especially if that person had consumed any alcohol or used any narcotic beforehand.

2. The officer’s callous and indifferent reaction to the gravity of the situation. First of all, Officer Bolling’s mutterings and inappropriate comments were strong evidence that he was under the influence of alcohol. What kind of person reacts that way? (Actually, an experienced and hardened Chicago Cop might. They make all sorts of inappropriate “jokes”).

There is a second way that this revelation impacted the trial. Normally, a jury would tend to have some sympathy for a Chicago cop. They might want to raise the bar of “proof beyond a reasonable doubt” just a little bit higher for him. But not one who is joking about “sliders” as a thirteen year old is dying.

3. The breath test result had to be a real problem. Normally, I am not a big fan of “extrapolation” evidence, which is what we had here. (A toxicologist “extrapolated” from the 0.079 BAC 4 1/2 hours after the fact that at the time of the crash, Bolling’s actual blood alcohol level was between 0.124 and 0.169). Without getting too detailed, extrapolation evidence is highly dependent on knowing exactly when a person consumed alcohol, which the toxicologist in this case did not know for certain. But this was an extreme case — because of the long wait we know that Bolling had nothing to drink for at least four and a half hours, and he was still right at the legal limit. That’s crucial.

Now comes post-trial motions and sentencing. Bolling is facing three to fifteen years or probation, but only if the court finds exceptional circumstances, whatever that means. Possibly, Judge Coghlan will find that being a Chicago cop is an exceptional circumstance. More likely, he will sentence Bolling somewhere in the range of eight to ten years in prison.

Before posting on FB, remember you have a right to remain silent!

One of the selling points of Google+ was that users could create “circles” so that posting for friends could be kept separate from “co-workers” or “family” etc.

Almost immediately, Facebook adopted a version of this.

This is because we often wish to present different versions of ourselves to different groups of people.  Or some information we wish to keep private.

I suspect that teenagers and young adults are particularly prone to this.

Thus, the recent case of Tomasz Maciaszek caught my attention.

He was found guilty of reckless homicide, after he was alleged to driven at speeds of as much as 79 miles per hour and crashed into another car, killing 17 year old Christina Jungkans.

At his sentencing hearing, he told the judge that “he has been fighting a battle with depression and insomnia. He said he has been secluded in his room, haunted by her death.”

That’s the version of himself he wanted the judge to know about.

However, it appears that he was presenting a different version of himself to his friends on Facebook.  While the newspaper reporters were not given details, it appears that Mr. Maciaszek’s postings weren’t consistent with his claims of spending his time sitting in his bedroom, reflecting on his actions.

Apparently, Mr. Maciaszek didn’t use “circles” or limit his posts to “friends only.”

His sentencing hearing before a Will County judge was delayed while the judge considered whether to allow the State to enter the Facebook postings into evidence to impeach Mr. Maciasczek.  Ultimately, the Court did not allow them to be entered, and he was sentencing to probation and 180 days in jail, although the Judge will likely release him after 60 days in custody.

I give credit to the prosecutor for attempting to present this evidence.  Day after day, criminal defendants seek mercy from judges by claiming that their arrest has caused them to reflect on their misdeeds and change.  For some, this is true; for others, it is not.

Anything that you put on the internet — be it a blog, twitter, facebook or anything else — is fair game.  And if you are a criminal defendant who claims to have changed his ways, or a plaintiff who claims to be too injured to work, or a witness who claims to be totally unbiased, don’t be surprised to be confronted with your own words or pictures that you left on the internet for everyone to see.

Thanks to Professor Vijay Sharma for sharing his thoughts with me (on facebook, no less!) on this interesting topic.

Why an anonymous tip is not enough to justify a police stop

A new Illinois Appellate court opinion was released this month concerning a common DUI fact situation: police stops based solely on anonymous tips.

The case is People v. Smulik, 2012 IL App (2d) 110110.

Here are the facts:

The defendant was drinking with a female companion at a restaurant.  They got into an argument, and he left and went to a bar.  Later, he got into his car, but decided to pull over and park in a gas station while he “cooled off” from the argument.  Meanwhile, the local police received a phone call from a woman who said she had seen the defendant drinking at both the restaurant and the bar.  She did not identify herself.  She told the police dispatcher that she thought the defendant was drunk and unable to safely drive.  She said she was following the defendant and gave the police a description of his vehicle.  Shortly thereafter, police arrived at the gas station, where defendant was sitting in his car, smoking a cigarette.  They blocked his car and approached him.  He had bloodshot eyes and an odor of an alcoholic beverage.

The trial court granted a Motion to Suppress and the Appellate Court affirmed.

In my opinion, the case was properly decided and was clearly supported by decades of case law on this issue.

In Illinois, a line of cases have developed when the police have received a tip of criminal activity.  These cases require that there must be “some indicia of reliability provided to justify the stop.”  People v. Messamore, 185 Ill.Dec. 892, 615 N.E.2d 762 (Ill.App. 3 Dist. 1993).  A two step determination must be made by the court.  People v. Crest, 136 Ill. Dec. 139, 544 N.E. 2d 825 (Ill.App. 2 Dist. 1989).   First, the Court must determine the reliability of the information, and second, there must be a showing that the officer took steps to corroborate the information.

In this case, there was an anonymous tip. I don’t think you have to be Sherlock Holmes to deduce that the caller was the defendant’s female companion, since how many other women would have would have known both places where defendant was drinking?  Nevertheless, she did not provide her name.

A case like this shows why some additional scrutiny is necessary when the police are relying on an anonymous tip.  Lets assume that the tipster was the defendant’s angry date.  Lets further assume that the defendant said or did something harmful to the tipster.  Is it not possible that she called the police just to get some measure of revenge on him? Knowing that he was not drunk, but that he had been drinking and would smell of alcohol?

Because anonymous tips can come from a vengeful enemy, the courts have required that the police obtain some corroborating evidence before they “seize” and detain someone.  In this case, there was no corroborating evidence of intoxicated driving, and the case was properly dismissed.

The bigger question for me is why was this case appealed, especially since it is clearly correct and in line with many precedents.  I believe it was appealed because the State’s Attorney’s office of DuPage was seeking to get the older case law overturned, and to get an opinion stating that if a tipster says a suspect drunk driver is westbound on Roosevelt Road driving an older gray Buick with license plate xyz; that a police officer can then pull over any vehicle matching that description without any corroborating facts to indicate that the motorist is truly unable to safely drive.

A New Way to Check for Cook County Warrants

 

Cook County Sheriff's Criminal Warrant Search

This weekend, someone e-mailed me with a question about a misdemeanor case that he had in Cook County a few years ago.  This person stopped going to court, and recently learned that there was an outstanding warrant for his arrest.  He wanted to know what could be done to resolve the situation.

Up until a few months ago, I would not have been able to tell him too much, until I went to the courthouse and reviewed the court file.  Now, however, thanks to Cook County Sheriff Thomas Dart, you or I can go to the Sheriff’s website and get information instantly.

The Sheriff’s new criminal warrant search allows you to check for an outstanding warrant.  The site will provide you with information about the warrant, most importantly, the amount of the bond that has been set.  Assuming a D bond has been set, ten percent of the bond amount will be required to be deposited in order to bond out.

The site also provides other information, including the reason for the warrant and the date it was issued.

There is also a link for child support warrants as well.

So, after a quick check of the Sheriff’s website, I was able to get back to the potential client armed with detailed knowledge about his case and the status of the warrant.

This is an excellent use of technology — it makes life much easier for defendants, victims, their families, and attorneys.  It also frees up court clerks and sheriff’s employees from having to pull files or answer phone calls about warrants.

Good job, Tom Dart!

More on the bill to allow citizens to video police

Rep. Elaine Nekritz

It only took them a few days, but the Chicago Tribune has caught up with this blog.  They have a story about HB3944, proposed by Representative Elaine Nekritz, which would amend the Illinois Eavesdropping statute to allow citizens to video record police officers on duty.

The Tribune quotes Representative Nekritz as saying:  “I believe that the existing statute is a significant intrusion into First Amendment rights, so with the prosecutions and the court cases that have been reported about, it just seemed that this is a problem in need of a swift solution.”

The article goes on to state:

Officials with the Fraternal Order of Police in Chicago have said the union backs the current law because it prevents people from making baseless accusations against officers by recording them and then releasing snippets that don’t reveal the full context of the incident.

But Nekritz — whose proposed legislation, HB 3944, also would allow a person to record a phone conversation with a business if the business says it may record the call — said police officers working in public should not consider their actions private.

 

Here is a link to the full text of HB3944.

Did Chicago Police try to cover up a DUI fatality case?

Officer Richard Bolling (picture by Terrance James, Chicago Tribune)

The Chicago newspapers have been reporting on the ongoing trial of Chicago Police Officer Richard Bolling, who is accused of being drunk behind the wheel (while off-duty) when he hit and killed 13 year old Trenton Booker.

The Chicago Tribune story is here; the Chicago Sun-Times story is here.

According to reports, Chicago police officers allowed Officer Bolling to leave the scene during their investigation to use a bathroom, they did not conduct field sobriety tests for several hours, appeared to have graded those tests on a curve (they wrote that he had passed the walk and turn test despite the arrest videos shows him exhibiting at least three clues of impairment which is considered a “failure” according to NHTSA), and waiting even longer to give him a breath test. When he finally took a breath test, he was 0.079, just barely under the legal limit.

The implication is clear — that had Officer Bolling taken a breath test a few hours earlier, he would have been over the legal limit (a good rule of thumb is that people’s BAC drop about 0.01 an hour, after they have reached their peak level of intoxication).

It does not seem that Officer Bolling was falling down drunk; instead, it appears it was a borderline case of someone who may have been impaired. He certainly did not help his case that he acted callously and indifferently as a teenaged victim lay dying (Officer Bolling was recorded joking about the officers eating his White Castle burgers that were in his car, and sounding upset about the damage to his car as officers investigated the crash). It was reported that it was recorded on tape that a superior officer told Bolling that they would try to do everything they could to help him out.

Had Chicago Police acted with more concern for the victim than for their fellow officer, they might have made a much stronger case for conviction than there appears to be here.

This week, I got a big assist from arrest videos

In the past few days, I have had three DUI cases that resulted in either a not guilty or a summary suspension rescinded for lack of reasonable grounds to arrest.

One in Chicago, one in Skokie and the third in Bridgeview.

All three cases involved State Troopers.

I should point out that State Police cases are often the hardest cases to beat because the Troopers are better trained, have better equipment (like Portable Breath Tests and dash cam videos) and they make better witnesses than your average local cop.  They even look better — they stay in shape and I don’t think I have ever seen a State Trooper with an unpressed shirt or unshined shoes.

In all three cases there were squad car videos.

This last fact made all the difference.

Did I do a nice cross-examination of the Troopers?  Sure.  But then again, the State’s Attorney’s did nice direct examinations of the Troopers too.  All three State’s Attorneys did as well as they possibly could have.

And the judges were not novices — they probably had over 80 years combined legal experience.

But ultimately, what swayed the three judges was the fact that the defendants in the videos didn’t look intoxicated.  Not at all.  No swaying, no stumbling, no confusion, no crying, no anger, no slurred speech.  All three submitted to field sobriety testing and looked perfectly normal, even though the Troopers claimed that they failed.

When I get that type of video, I start to look like Clarence Darrow.

Without the video, I might have still have won all three cases, but who knows?  The videos sure helped.

I should point out that videos do not always help the defense.  This week, I also obtained a couple of arrest videos that will lead me to strongly suggest to my clients that they should consider pursuing a plea bargain.

So, again, I want to thank the Illinois Supreme Court for their recent ruling that arrest videos are now required to be turned over to the defense, even in misdemeanor cases.