Illinois Prosecutors Bar Association News

Emotional Wellness for Prosecutors

Thu, 09 Sep 2021 01:56:25 GMT

Nearly everyone who works within the criminal court system has the power to affect people’s lives. Whether a victim, a defendant, a witness or a family member of one of those players, our actions can determine whether someone goes on to live a responsible, productive life, develops faith or cynicism in the criminal court system, or loses their liberty. It is a tremendous responsibility that demands our full attention, our best effort and judgment, and a willingness to tackle each case singularly.

In addition to this responsibility, we see the horrific details that accompany many criminal cases. We see the injuries to a victim through photos. We hear screaming and pleading for help on 911 calls. We read police reports detailing the devastation that led to the criminal charge. We witness the collateral damage to children and other family members. We have all of this while dealing with exorbitant caseloads and working through a worldwide pandemic, neither of which yet has an expiration date.

This, of course, equates to a great deal of stress, which will take a significant mental toll if not properly managed. Now is the time to proactively address the stresses of this job so that we support our employees and keep caring people in the jobs they love. That is why I asked Sugar Grove-based therapist Jada Hudson to write about prosecutor emotional well-being. Dr. Hudson, M.S., LCPC, CADC, is a clinically trained therapist with more than 20 years of experience. She specializes in counseling first responders who have experienced occupational stress and trauma.

I encourage lawyers and administrative staff alike to read this article, and to understand that the stress and trauma that goes with working in a prosecutor’s office is to be expected. Hopefully, this will begin a long overdue discussion on how to help those who have made helping others their career choice. I hope you will find this information to be helpful in managing stress and trauma.

– Jamie L. Mosser, Kane County State’s Attorney

Emotional Wellness for Prosecutors
By: Jada Hudson

-Article available for download here.

National District Attorneys Associations statement on Best Practices

Thu, 28 Mar 2019 16:24:40 GMT

We strongly encourage our members to review the National District Attorneys Associations statement on prosecutorial best practices in high profile cases.

PBA Quarterly Law Update

Sun, 27 Jan 2019 20:57:00 GMT

Carpenter v. United States, 138 S. Ct. 2206 (2018)

Police officers must obtain a search warrant before accessing historical cell phone records that chronicle an individual’s prior movements

Federal prosecutors obtained a court order for the defendant’s cell phone records, which included cell-site location information. This information led to the defendant’s conviction on multiple robbery and firearms charges. Reversing the decision below, the United States Supreme Court held that an individual has a reasonable expectation of privacy “in the whole of his physical movements.” When the government accesses cell-site location information, it invades that expectation of privacy. The fact that the individual’s movements are shared with a third party, i.e., wireless carriers, is of no consequence due to the deeply revealing nature of cell-site location information; its depth, breadth, and comprehensive reach; and the inescapable and automatic nature of its collection. Therefore, in the absence of an exception, law enforcement must obtain a warrant supported by probable cause before acquiring such information.

People v. Gocmen, 2018 IL 122388

A police officer need not be qualified as an expert in order to testify to his opinion that an individual is under the influence of drugs

A police officer responded to a report of an unconscious person in a vehicle, possibly having a seizure. When he arrived at the scene, the officer observed the defendant in the driver’s seat of a vehicle that was partially off the road. Inside the vehicle, the officer saw an uncapped syringe, a small plastic bag containing a brown granular substance, and a cut or torn Red Bull can with burn marks and brown residue. A “NARK swipe” of the brown residue showed the presence of opiates. There was also a fresh “track mark” on the defendant’s arm. Based on these observations, the officer testified to his opinion that the defendant was under the influence of drugs. The Illinois Supreme Court held that the officer properly gave his opinion without being qualified as an expert. The court explained that the officer’s testimony was admissible because it was based on his experience and personal familiarity with drugs rather than scientific, technical, or specialized knowledge. Had the officer based his opinion on field sobriety tests, which require experience and expertise in conducting such tests and interpreting their results, the court signaled that it would have reached a different result.

People v. King, 2018 IL App (2d) 151112

A prosecutor may not tell jurors that it is acceptable to convict the defendant even if they have questions about the evidence

During closing arguments at the defendant’s trial for first degree murder, the prosecutor argued that it was “okay” for the jurors to have “questions” about the evidence and “still convict the defendant.” The prosecutor gave an example of a permissible question dealing with the manner in which the defendant moved the victim’s body onto a set of railroad tracks. The prosecutor then reiterated that the jurors could have questions, “as long as those questions don’t amount to reasonable doubt.” Noting the well-established rule that “reasonable doubt” needs no definition, the Illinois Appellate Court found that the prosecutor’s argument was an improper attempt to define and dilute the State’s burden of proof. Although the defendant’s conviction was reversed for other reasons, the court cautioned that “nothing close” to such an argument would be permitted on retrial.

People v. Long, 2018 IL App (4th) 150919

A prosecutor violates the rule against prior consistent statements by asking a witness if his prior statements to police matched his testimony at trial

At a trial for conspiracy to manufacture methamphetamine, the prosecutor questioned a witness about his prior statements to police. The witness testified that he told police “the truth.” The witness also acknowledged that he had an obligation to tell the truth “then and now,” meaning during his police interview and at trial. On appeal, the Illinois Appellate Court held that the prosecutor violated the rule against prior consistent statements by asking the witness if his statements to police matched his trial testimony. The court explained that evidence of a prior consistent statement is admissible only when it has been suggested that the witness recently fabricated testimony or has a motive to testify falsely and the prior statement was made before the motive arose. Neither situation applied to this case. Nevertheless, given the strength of the evidence, the court found that the prosecutor’s misstep did not amount to plain error.

Download the January 2019 PBA Law Update here.

If you would like to submit a case for distribution in the next Law Update please email ASA Steven Lupa at slupa2@gmail.com.

Vermilion County ASA Position

Fri, 31 Aug 2018 16:45:47 GMT

Vermilion County

Assistant State's Attorney Position - Juvenile Division

SUMMARY

Under general direction, performs legal work in the State’s Attorney’s Office as prescribed by law.

ESSENTIAL DUTIES AND RESPONSIBILITIES

Exercises primary responsibility for the preparation, plea negotiation and trial of all types of traffic/misdemeanor cases of normal complexity.

Exercises primary responsibility for the preparation, plea negotiation and trial of all types of felony cases of normal complexity.

Exercises primary responsibility for the preparation and presentation of written briefs and oral judgments in all types of felony cases of normal complexity.

Exercises primary responsibility for the preparation and presentation of juvenile cases involving delinquency and minors in need of supervision at the trial and appellate level.

Handles all Department of Children and Family Service cases.

Exercises primary responsibility in the preparation and presentation of mental health act and related proceedings as well as criminal non-support.

Prepares and presents complaints for search warrants in extradition proceedings.

Conducts investigations with local law enforcement officials in criminal cases of normal complexity.

Other duties may be assigned.

QUALIFICATIONS:

To perform this job successfully, an individual must be able to perform each essential duty satisfactorily. The requirements listed below are representative of the knowledge, skill, and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

EDUCATION and/or EXPERIENCE:

Requires license to practice law before Illinois Courts and a minimum of two to five years litigation experience, and/or minimum two years combined legal experience.

Application can be found on the Vermilion County Website at https://www.vercounty.org/Jobs/G400178.pdf and can be mailed along with a Resume to the Address below:

Vermilion County - Human Resources Department

County Board Office

201 N. Vermilion - 2nd Floor

Danville, IL 61832

Police Charities

Sat, 24 Feb 2018 02:45:01 GMT

Please keep these law enforcement benevolent forganizations in mind:

100 CLUB OF CHICAGO

https://www.100clubchicago.org/

The 100 Club of Chicago provides for the families of first responders who have lost their lives in the line of duty. This membership based organization offers several forms of financial assistance, access to resources and moral support. All sworn federal, state, county and local first responders stationed in Cook and Lake Counties are included.

CHICAGO POLICE MEMORIAL FOUNDATION

https://www.cpdmemorial.org/

The Chicago Police Memorial Foundation is a not-for-profit organization dedicated to honoring the lives of our fallen heroes. The Foundation provides support and assistance to the families of Chicago police officers who are killed or catastrophically injured in the line of duty.

Winnebago ASA Position

Sat, 24 Feb 2018 02:39:46 GMT

Position Posting

Assistant State’s Attorney’s

Criminal Bureau

Position description: Under general supervision, performs professional legal work within the Winnebago County State’s Attorney’s Office in various units including Misdemeanor, DUI, Traffic, Juvenile, Civil, Domestic Violence, Drug Unit and Felony. All other duties as assigned.

Position hours: Our current office hours of operation are Monday – Friday from 8:00-5:00. Please note, Assistant State’s Attorneys are exempt employees which require working the number of hours necessary to fulfill the responsibilities of the position. If there are any modifications to these hours advance notice will be provided.

Individuals interested in applying for an Assistant State’s Attorney position in our Criminal Bureau should provide a cover letter, resume, references (with email addresses), a writing sample and salary requirements. These documents will be accepted until end of day on Friday, March 16, 2018.

Please submit to required documents to:

Stephanie Bahling

Chief of Operations

400 W. State St Suite 619

Rockford, Il 61101

sbahling@wincoil.us

Upon receipt resumes will be reviewed by our interview committee and interviews will set up accordingly.

FALL SEMINAR - FRIDAY NOVEMBER 3rd - SAVE THE DATE!!

Tue, 15 Aug 2017 18:11:14 GMT

The IPBA's Fall Seminar is set for Friday, November 3rd at the Hyatt Regency in Lisle, IL.

Click here to register for the seminar.

AG Announces Nat'l Public Safety Partnership to Combat Violent Crime

Fri, 21 Jul 2017 14:19:28 GMT

Attorney General Sessions Announces Creation of National Public Safety Partnership to Combat Violent Crime

As the Department of Justice continues its efforts to fulﬁll President Trump’s commitment to reducing violent crime in America, Attorney General Jeff Sessions announced today that 12 cities are joining the Department’s newly organized National Public Safety Partnership (PSP). The announcement came during the opening session of a national summit organized by the Attorney General’s Task Force on Crime Reduction and Public Safety. The summit convened federal, state and local law enforcement to discuss how to support and replicate successful local violent crime reduction efforts.

A list of the cities is posted at www.nationalpublicsafetypartnership.org .

“Turning back the recent troubling increase in violent crime in our country is a top priority of the Department of Justice and the Trump Administration, as we work to fulﬁll the President’s promise to make America safe again,” said Attorney General Sessions. “The Department of Justice will work with American cities suffering from serious violent crime problems. There is no doubt that there are many strategies that are proven to reduce crime. Our new National Public Safety Partnership program will help these communities build up their own capacity to ﬁght crime, by making use of data-driven, evidence-based strategies tailored to speciﬁc local concerns, and by drawing upon the expertise and resources of our Department.”

The Justice Department created PSP and the task force in response to President Trump’s February 9, 2017, Executive Order charging the agency with leading a national effort to combat violent crime. The partnership provides a framework for enhancing federal support of state, local and tribal law enforcement ofﬁcials and prosecutors as they aggressively investigate and pursue violent criminals, speciﬁcally those involved in gun crime, drug trafﬁcking and gang violence.

Twelve sites have been selected to receive this signiﬁcant assistance: Birmingham, Alabama Indianapolis, Indiana Memphis, Tennessee Toledo, Ohio Baton Rouge, Louisiana Buffalo, New York Cincinnati, Ohio Houston, Texas Jackson, Tennessee Kansas City, Missouri Lansing, Michigan Springﬁeld, Illinois

We anticipate announcing additional sites this calendar year.

The Justice Department agencies involved in PSP are the United States Attorneys’ Ofﬁces, Ofﬁce of Justice Programs; the FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the U.S. Marshals Service; the Drug Enforcement Administration; the Ofﬁce on Violence Against Women; and the Ofﬁce of Community Oriented Policing.

For more information about the Department of Justice’s work to reduce violent crime and enhance public safety: Attorney General Announces Crime Reduction and Public Safety Task Force Attorney General Sessions Directs Federal Prosecutors to Target Most Signiﬁcant Violent Offenders Attorney General Jeff Sessions Announces New Initiatives to Advance Forensic Science and Help Counter the Rise in Violent Crime Attorney General Jeff Sessions Announces New Actions to Support Law Enforcement and Maintain Public Safety in Indian Country Department of Justice Releases Report Detailing the Prosecutions of Transnational Criminal Organizations and their Subsidiaries Attorney General Sessions Issues Charging and Sentencing Guidelines to Federal Prosecutors

Attachment(s): Download PSP Backgrounder Topic(s): Violent Crime Component(s): Ofﬁce of the Attorney General

IL S CT Roundup June 2017

Sat, 01 Jul 2017 04:08:47 GMT

THE PEOPLE OF THE STATE OF ILLINOIS v. IDA WAY. Docket No. 120023 Opinion filed April 20, 2017.

The circuit court barred defendant from introducing evidence that a medical condition possibly caused her to lose consciousness prior to hitting another vehicle, which resulted in serious injury to two people. A sole proximate cause defense was not appropriate in this case unless there was evidence that the sole proximate cause, not a proximate cause, of the collision was defendant’s sudden unforeseeable medical condition. Holton, 176 Ill. 2d at 134. Dr. McDermott, however, could not testify that defendant’s low blood pressure was the cause of her falling asleep or losing consciousness prior to the accident, only that it was a possibility. Based upon the offer of proof, defendant was unable to show that her theory as to why she lost control of her vehicle was the sole proximate cause of the resulting collision to the exclusion of the presumed impairment. Consequently, we find defendant failed to adequately support her claim that the trial court improperly barred her affirmative defense from proceeding.

People ex rel. Alvarez v. Howard, 2016 IL 120729 Filed December 1, 2016

Respondent did not err in transferring defendant’s case from criminal court to juvenile court. Under the previous version of section 5-130, defendant’s case was automatically transferred to criminal court because he was 15 years old when the crimes occurred. The legislature changed the automatic transfer age from 15 to 16, and this amendment was retroactive under section 4 of the Statute on Statutes. Accordingly, defendant’s case belongs in juvenile court, unless and until it is transferred to criminal court pursuant to a discretionary transfer hearing. Because the circuit court’s transfer of the case was not even erroneous, let alone outside the court’s jurisdiction or its legitimate authority, there is no basis for this court to issue a writ of mandamus or prohibition.

People ex rel. Glasgow v. Carlson, 2016 IL 120544 Filed December 1, 2016

Petitioner asks this court to compel respondent to (1) vacate its January 6, 2016, sentencing order, (2) classify as a Class 2 felony Mitchell Harper’s third violation of Illinois’s driving while under the influence (DUI) statute of the Illinois Vehicle Code (625 ILCS 5/11-501 et seq. (West 2014)), and (3) resentence defendant as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(b) (West 2014)). The circuit court also relied on excerpts from various editions of an Illinois judicial benchbook that suggested or implied a potential inconsistency in the section 11-501 sentencing provisions. “We conclude that defendant’s third DUI conviction constitutes aggravated DUI and must be treated as a Class 2 felony under the plain language of subsection (d)(2)(B) of section 11-501. Because the record shows that defendant has at least two prior Class 2 felony or higher convictions, he must be sentenced as a Class X offender on his aggravated DUI conviction in this case. 730 ILCS 5/5-4.5-95(b) (West 2014); see also Morris, 2014 IL App (1st) 130152, ¶ 54 (affirming a Class X sentence on a defendant who was convicted of Class 2 felony aggravated DUI).”

People ex rel. Alvarez v. Gaughan, 2016 IL 120110 Filed December 1, 2016

The petitioner, seeks a writ of mandamus to compel respondent to sentence defendant, Steven Castleberry, with a mandatory 15-year firearm enhancement imposed on each of his two convictions for aggravated criminal sexual assault. Because “two convictions based on two separate acts of sexual penetration while armed with a firearm warrant the imposition of two separate sentence enhancements, one for each offense, we issue a writ of mandamus, ordering the respondent judge to vacate his sentencing order and resentence Castleberry, imposing the mandatory firearm enhancement on both of Castleberry’s convictions”

In re M.M., 2016 IL 119932 Filed December 1, 2016

At the close of a dispositional hearing on a juvenile petition based on neglect, the circuit court of Peoria County found that respondent, Heather M., was a fit parent to her children, J.M. and M.M. However, the court awarded temporary custody and guardianship to the Department of Children and Family Services (DCFS). We hold that section 2-27(1) of the Act does not authorize placing a ward of the court with a third party absent a finding of parental unfitness, inability, or unwillingness to care for the minor.

PEOPLE v. BLACKIE VEACH (Docket No. 120649) Opinion filed May 18, 2017.

In this appeal, we examine the propriety of a growing practice in the appellate court of declining to consider ineffective assistance of counsel claims on direct review. A Coles County jury found defendant, Blackie Veach, guilty of two counts of attempted murder and rejected defendant’s theory that someone else committed the crimes. On direct review, defendant argued that his trial counsel was ineffective for stipulating to the admission of recorded statements of the State’s witnesses. A majority of the appellate court affirmed, holding that the record was inadequate to resolve the issue. The majority encouraged defendant to raise the issue in a postconviction petition. 2016 IL App (4th) 130888. We allowed defendant’s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315. We hold that the record in this case was sufficient for the appellate court to consider defendant’s ineffective assistance of counsel claim on direct review and, therefore, the appellate court erred in declining to consider the claim. We reverse the judgment of the appellate court and remand the cause to the appellate court for further review.

PEOPLE v. MONTANA SEBBY. (Docket No. 119445) Opinion filed June 2, 2017.

Defendant was convicted by a jury of resisting a peace officer, a Class 4 felony (720 ILCS 5/31-1(a-7), and sentenced by the trial court to two years’ imprisonment. On appeal, the defendant argued that the trial court committed error in admonishing prospective jurors pursuant to Illinois Supreme Court Rule 431(b) and that, despite his failure to object to that error, he was entitled to a new trial because the evidence was closely balanced. The trial court erred in asking potential jurors whether they had any “problems” with the Zehr principles. Under Rule 431(b), the trial court should have asked whether jurors understood and accepted those principles. Because the evidence was so closely balanced, the trial court’s clear instructional error alone may have tipped the scales in favor of the State. We choose to err on the side of fairness and remand for a new trial. (DISSENTS FILED)

PEOPLE v. MIESHA NELSON (Docket No. 120198) Opinion filed June 15, 2017

Defendant contended that she was denied her sixth amendment right to conflict-free counsel where attorneys from the same law firm represented defendant and codefendant Hall and defendant’s attorneys, in making their choice of defenses, decided to forgo asserting an innocence defense in favor of pursuing a joint defense of self-defense. (Defendant was represented by Richard Kling and Susana Ortiz, both from the Law Offices of Chicago-Kent College of Law. Hall was represented by Daniel Coyne, also from the Law Offices of Chicago-Kent.) Regarding establishing conflicts, the Echols rule does not afford courts the opportunity to assess whether the interests of the codefendants actually are at odds with each other in a particular case and, therefore, whether a conflict of interest exists. The Echols rule is therefore in conflict with the Sullivan standard for establishing an actual conflict and must be overruled. “We find defendant has failed to show that an innocence defense based on a lack of accountability was a plausible alternative defense. Accordingly, defendant has not shown an actual conflict of interest.”

PEOPLE v. CARA M. RINGLAND (Docket No. 119484) Opinion filed June 29, 2017

A controlled substance was discovered during a traffic stop. These traffic stops were conducted by a special investigator appointed by Brian Towne, then State’s Attorney of La Salle County, pursuant to section 3-9005(b) of the Counties Code (55 ILCS 5/3-9005(b) (West 2012)). The circuit court granted each defendant’s motion to quash arrest and suppress evidence. The appellate court affirmed, holding that the conduct of the special investigator exceeded the scope of section 3-9005(b). “We hold that the State’s Attorney’s common-law duty to investigate suspected illegal activity did not apply to Towne because he made no showing that law enforcement agencies inadequately dealt with such investigation or that any law enforcement agency asked him for assistance. Absent this duty, the conduct of the SAFE unit fell outside of the scope of section 3-9005(b).” (DISSENT FILED)

US Supreme Court Roundup June 2017

Sat, 01 Jul 2017 02:49:53 GMT

Nelson v. Colorado, No. 15-1256 [Arg: 1.9.2017; Decided 4.19.2017]

Holding: The scheme under Colorado's Exoneration Act -- which permits the state to retain conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence -- does not comport with the 14th Amendment's guarantee of due process.

County of Los Angeles v. Mendez, No. 16-369 [Arg: 3.22.2017; Decided 5.30.2017]

Holding: The Fourth Amendment provides no basis for the U.S. Court of Appeals for the 9th Circuit's "provocation rule," which makes an officer's otherwise reasonable use of force unreasonable if (1) the officer "intentionally or recklessly provokes a violent confrontation" and (2) "the provocation is an independent Fourth Amendment violation."

Honeycutt v. U.S., No. 16-142 [Arg: 3.29.2017; Decided 6.5.2017]

Holding: Because forfeiture pursuant to Section 853(a)(1) of the Comprehensive Forfeiture Act of 1984 is limited to property the defendant himself actually acquired as the result of the crime, that provision does not permit forfeiture with regard to Terry Honeycutt, who had no ownership interest in his brother's store and did not personally benefit from the illegal sales.

Virginia v. LeBlanc, No. 16-1177 [ Decided 6.12.2017]

Holding: The Virginia trial court's ruling denying Dennis LeBlanc's motion to vacate his sentence in light of the Supreme Court's requirement in Graham v. Florida that a state give juvenile offenders convicted of a nonhomicide crime "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" -- a ruling which rested on the Virginia Supreme Court's earlier ruling in Angel v. Commonwealth that the state's geriatric release program satisfies this requirement -- was not objectively unreasonable in light of the U.S. Supreme Court's current case law.

Packingham v. North Carolina, No. 15-1194 [Arg: 2.27.2017; Decided 6.19.2017]

Holding: The North Carolina statute, which makes it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages," impermissibly restricts lawful speech in violation of the First Amendment.

Weaver v. Massachusetts, No. 16-240 [Arg: 4.19.2017; Decided 6.22.2017]

Holding: (1) In the context of a public-trial violation during jury selection, when the error is neither preserved nor raised on direct review but is raised later via an ineffective-assistance-of-counsel claim, the defendant must demonstrate prejudice to secure a new trial; (2) Because Kentel Weaver has not shown a reasonable probability of a different outcome but for counsel's failure to object or that counsel's shortcomings led to a fundamentally unfair trial, he is not entitled to a new trial.

Turner v. U.S., No. 15-1503 [Arg: 3.29.2017; Decided 6.22.2017]

Holding: The withheld evidence is not material under Brady v. Maryland. Considering the withheld evidence “in the context of the entire record,” Agurs, supra, at 112, that evidence is too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards

SEX OFFENDER REGISTRATION; Vagueness. 1983 actions after a PC finding? Sup Ct Summaries 3-29-17

Wed, 29 Mar 2017 18:22:16 GMT

Recent U.S. Supreme Court Summaries – 3/29/17

Manuel v. City of Joliet, No. 14-9496 [Arg: 10.5.2016 Trans./Aud.; Decided 3.21.2017]

Holding: (1) Elijah Manuel may challenge his pretrial detention on Fourth Amendment grounds; and (2) on remand, the U.S. Court of Appeals for the 7th Circuit should determine the accrual date of Manuel's Fourth Amendment claim, unless it finds that the city of Joliet has previously waived its timeliness argument.

{The District Court dismissed Manuel’s suit, holding, first, that the applicable two-year statute of limitations barred his unlawful arrest claim, and, second, that under binding Circuit precedent, pretrial detention following the start of legal process (here, the judge’s probable-cause determination) could not give rise to a Fourth Amendment claim. Manuel appealed the dismissal of his unlawful detention claim; the Seventh Circuit affirmed.}

Moore v. Texas, No. 15-797 [Arg: 11.29.2016 Trans./Aud.; Decided 3.28.2017]

Holding: By rejecting the habeas court's application of current medical diagnostic standards and by following the standard under Ex parte Briseno, including the nonclinical Briseno factors, the decision of the Texas Court of Criminal Appeals does not comport with the Eighth Amendment and Supreme Court precedents.

{Petitioner Moore was convicted of capital murder and sentenced to death for fatally shooting a store clerk during a botched robbery that occurred when Moore was 20 years old. The state habeas court examined recent psychiatric standards and held that the defendant should not be sentenced to death under Atkins. The Texas CCA held instead that the state habeas court erred by not following the CCA’s 2004 decision in Ex parte Briseno.}

Recent Illinois Supreme Court Opinions – 3-29-17

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRIAN PEARSE, Appellant (Opinion filed March 23, 2017)

Following a jury trial in the circuit court of Boone County, defendant, Brian Pearse, was convicted of failing to register his address in accordance with section 3 of the Sex Offender Registration Act (Act) (730 ILCS 150/3 (West 2012)). On appeal, defendant argued that (1) he was not proved guilty of that offense beyond a reasonable doubt and (2) the trial court erred in giving the jury nonpattern instructions that did not apply to the facts of the case. The appellate court, with one justice dissenting, affirmed the defendant’s conviction. 2016 IL App (2d) 140051-U. We allowed the defendant’s petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff. Jan. 1, 2015)) and now reverse the judgment of the appellate court.

{“Thus, we believe it is the intent of the legislature that the offender be tracked by giving notice to the law enforcement authorities in the jurisdiction he is leaving. Defendant was not charged with failure to give that notice, and there was no evidence in any event that he failed to do so. We conclude that the evidence presented by the State failed to establish a violation of section 3 of the Act, the section specified in the indictment. Given this finding, there is no need to address the instructional issue raised in this appeal. … we reverse the judgment of the appellate court.”}

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ARCHIE C. HOWARD, Appellant. (Opinion filed March 23, 2017)

Following a bench trial in the circuit court of Peoria County, the defendant, Archie Howard, was convicted of violating section 11-9.3(b) of the Criminal Code of 1961 (720 ILCS 5/11-9.3(b) (West 2010)). This provision generally makes it unlawful for a child sex offender to knowingly loiter within 500 feet of a school while persons under the age of 18 are present. Defendant appealed, arguing that the evidence presented at his trial was insufficient to prove him guilty of “loitering” within the meaning of the statute and that the statutory provision was unconstitutionally vague. The appellate court affirmed defendant’s conviction, with one justice dissenting. 2016 IL App (3d) 130959. For the reasons that follow, we affirm the judgment of the appellate court.

BIAS BY JURIES, JUDGES? US Sup Ct Summaries March 2017

Fri, 10 Mar 2017 23:47:38 GMT

Pena-Rodriguez v. Colorado, No. 15-606 [Arg: 10.11.2016 Trans./Aud.; Decided 3.6.2017]

Holding: When a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee.

Rippo v. Baker
16-6316	Nev.	Not Argued	Mar 6, 2017	n/a	Per Curiam	OT 2016

Holding: In reviewing Michael Rippo's application for state postconviction relief -- contending under the due process clause of the 14th Amendment that his trial judge, the target of a federal bribery probe, could not have impartially adjudicated the case -- the Nevada Supreme Court did not ask the question required by precedent: whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable.

Judgment: Vacated and remanded in a per curiam opinion on March 6, 2017.

IL Supreme Court Summaries March 2017

Fri, 03 Mar 2017 21:37:25 GMT

IL S CT Summaries 2017.docx

Victim Impact, Double Jeopardy, Use of Force. US Sup Ct Summaries March 2017

Fri, 03 Mar 2017 21:34:49 GMT

SCOTUS Summaries 2017.docx

Court reopens race and death penalty issues

Wed, 06 Jul 2016 12:33:42 GMT

Returning to ongoing disputes over the role of race in criminal punishment, the Supreme Court on Monday added a new case for decision at its next Term — one involving the death penalty in Texas.

In another Texas capital punishment case, the Court agreed to try again to sort out when an individual is too disabled intellectually to be sentenced to death. The Justices chose not to consider a second issue raised in that case: the constitutionality of prolonged stays on death row, especially on the theory that this treatment causes severe psychological harm. A month ago, over Justice Stephen G. Breyer’s dissent, the Court refused to hear that question in a California case. It appears that there are not four votes (the minimum number required) to grant review of that particular issue.

In the newly granted case of Buck v. Stephens, the Court gave itself the option of weighing a death sentence that may have been influenced by a racist comment by an expert who had been called to the witness stand by a defense lawyer, not by prosecutors. The expert had made similar comments in several other Texas cases, and the state had taken action to remedy those, but did not do so in the case of Duane Edward Buck of Houston.

Buck’s new appeal focused on the same legal complaint that a divided Court refused to consider five years ago: that his defense lawyer failed in his constitutional duty by calling to the stand a psychologist, who told the jury that Buck would be likely to be dangerous in the future, if not put to death, because of his race; Buck is black. The question of future dangerousness was a central issue for Texas juries in deciding for or against a death sentence.

The witness, Dr. Walter Quijano, had been summoned by Buck’s trial lawyer to testify on the dangerousness issue. He said flatly that his studies had shown that black people and males were more likely to be a danger to the public. Under questioning by Buck’s lawyer, he reviewed the findings of his report.

Buck was sentenced to death for murdering his girlfriend in front of her children, along with the murder of a man. Both crimes occurred in 1995. When Buck took an appeal to the Supreme Court in 2011, five Justices commented negatively about the witness’s comment, but three of those five said the blame lay with Buck’s lawyer for calling that witness and eliciting that testimony. Two Justices would have granted review at that time.

As Buck’s case returned to the Court this Term, it focused on whether the U.S. Court of Appeals for the Fifth Circuit had raised too high a barrier before Buck could raise anew the question about Dr. Quijano’s testimony. Buck’s current lawyers have been attempting to reopen his case to raise the same racial discrimination issue. That essentially procedural question may be at the center of the Court’s coming review, but the underlying race bias claim remains in the case.

Lyle Denniston, Court reopens race and death penalty issues, SCOTUSBLOG (Jun. 6, 2016, 1:41 PM), http://www.scotusblog.com/2016/06/court-reopens- race-and- death-penalty- issues/

A Weekend in Chicago

Sat, 04 Jun 2016 20:36:03 GMT

“The Newlywed Game” is on the television. Julia Rhoden, 53, is sitting on her bed, exhausted from another long day at the health care center where she works as a nurse’s aide. There is a loud boom and then another and another. She feels a sting as a bullet enters her back. “I been shot! I been shot!” she cries out to her children in the next room, as blood soaks through the summer dress she wears as a nightgown.

That same night, 15-year-old Veronica Lopez is hit as she rides in a Jeep that is speeding along a waterfront drive. “Babe, they shot me in the stomach,” the girl tells a friend, who later says he covered her body with his own as the gunfire continued.

“Help, I’ve been shot!” another teenager screams as he limps down a darkened street, a bullet having torn through his leg.

It is Friday night in Chicago, and the Memorial Day weekend is just getting started. Police Department officials plan to deploy more than a thousand extra officers to deal with the violence they fear will intensify with the unofficial start of summer.

There is no stopping the gunfire, which comes in bursts and waves, interrupting holiday barbecues, igniting gang rivalries, engulfing neighborhoods, blocks, families.

From Friday evening to the end of Monday, 64 people will have been shot in this city of 2.7 million, six of them fatally. In a population made up of nearly equal numbers of whites, blacks and Hispanics, 52 of the shooting victims are black, 11 Hispanic and one white. Eight are women, the rest men. Some 12 people are shot in cars, 11 along city sidewalks, and at least four on home porches.

It is a level of violence that has become the terrifying norm, particularly in predominantly black and Latino neighborhoods on the South and West Sides. With far fewer residents, Chicago has more homicides than Los Angeles or New York.

In an effort to capture what is happening on Chicago’s streets, and why, The New York Times dispatched a team of reporters, photographers and videographers to virtually all of the shooting scenes across the city. Working around the clock through the three-day weekend, The Times interviewed relatives, witnesses, police officers and others, and captured how much violence has become a part of the city’s fabric. The Times intends to follow the cases throughout the year.

This weekend, among the six killed are a father, Garvin Whitmore, who loved to travel but was scared of riding on roller coasters, and Mark Lindsey, whose outsize personality brought him his nickname, Lavish. The oldest person struck by a bullet is 57. The youngest person to die is Ms. Lopez, a high school student and former cheerleader.

And so the logic of one Chicago mother, who watches another mother weep over her dead son in their South Side neighborhood, is this: She is glad her own son is in jail, because the alternative is unbearable.

“He was bound to be shot this summer,” she says.

Opinion analysis: Telltale files on race-based jury selection

Mon, 23 May 2016 19:00:00 GMT

Analysis

The Supreme Court made a new effort on Monday to restrict prosecutors’ power to strike black jurors in a racially sensitive case, but the result was so tightly focused on what happened at just one trial that it was doubtful that the new ruling would do much to end the practice. What made the difference this time, it appeared, was defense lawyers’ discovery of telltale files obtained from prosecutors years after the trial was over.

That may not happen again, but at least not often. Even if prosecutors were deliberately trying to keep all blacks from serving on the jury in this specific Georgia murder case, as the Supreme Court found on Monday, they also have contended that they created the files as they were trying to figure out how to deal with race in jury selection under a then-recent Supreme Court ruling. With that ruling condemning a racial motive, it is doubtful that prosecutors in many cases since then would create such revealing files, with clear markings next to the names of potential black jurors to be stricken from the jury pool.

The decision in Foster v. Chatman dealt with the trial practice of “peremptory strikes” of members of a jury pool — that is, striking a pool member without giving a reason to do so. Until the 1986 ruling in Batson v. Kentucky, the use of such strikes could not be challenged.

The Batson decision, however, made it unconstitutional to do that intentionally, when race is the motive. In today’s decision, the Court ruled that the conviction and death sentence twenty-nine years ago of a young black man, Timothy Tyrone Foster of Rome, Ga., for murdering an elderly white woman was unconstitutional, based on the use of peremptory strikes to keep all blacks from serving on the jury. The Justices voted seven to one for that conclusion.

It was unclear, however, whether the decision will actually nullify Foster’s conviction or his death sentence. That’s because two Justices suggested that state courts in Georgia may yet be able — when the case returns to them — to scuttle Foster’s challenge on a procedural point under state law. That procedural point was not enough to keep the Court from hearing Foster’s challenge to the selection of his jury, but it conceivably could be used by prosecutors to sustain the guilty verdict and sentence after all. The procedural theory for such a result would be that Foster was not free to reopen the jury-selection issue after losing on it in an earlier challenge in state courts.

Lyle Denniston, Opinion analysis: Telltale files on race-based jury selection, SCOTUSBLOG (May. 23, 2016, 2:22 PM), http://www.scotusblog.com/2016/05/opinion-analysis- telltale-files- on-race- based-jury-selection/

Opinion Analysis: “Speedy trial” guarantee does not apply to sentencing

Thu, 19 May 2016 10:37:37 GMT

The price of unanimity on an ideologically divided Court is, as we are learning in Justice Antonin Scalia’s absence, narrow opinions that reserve difficult issues for future consideration. Today in Betterman v. Montana, the Court “confine[d]” its decision to the Sixth Amendment only, ruling that its Speedy Trial Clause “does not apply” to “delayed sentencing” after a defendant has been found guilty by trial or plea.

After this short and simple ruling, Justice Ruth Bader Ginsburg’s opinion for the eight-Justice court was littered with limiting footnotes, expressly leaving open a number of related questions that, while not unimportant, are “inside baseball” to the average SCOTUS fan. On the largest unresolved question — how and when courts should apply the Due Process Clauses to “inordinate” or “exorbitant” sentencing delays — Justice Clarence Thomas and Justice Sonia Sotomayor each offered two-page concurring opinions expressing different preliminary thoughts.

Brief facts

As you may recall from my prior posts, it took the Butte County District Court fourteen months to sentence Brandon Betterman for bail jumping (after he failed to show up on prior domestic violence charges). After nine months, Betterman asked for a “speedy” sentencing, and claimed that he was suffering various adverse consequences from the delay and his consequent presentencing detention in the county jail, as opposed to the state prison where he would go once sentenced. (In a footnote, the Court is perhaps a bit too dismissive of this concern as “of no constitutional moment,” saying that “a convicted defendant has no right to serve his sentence in the penal institution he prefers.”). Betterman finally received a sentence of seven years, four of which were suspended.

On appeal, the Montana Supreme Court joined a fifteen-court (state and federal) split, ruling that the Sixth Amendment speedy-trial right does not apply to sentencing. That court also ruled the delay in Betterman’s sentencing did not violate any due process norms.

The Court’s Sixth Amendment ruling

Because Betterman “did not preserve a due process challenge” in his certiorari petition, the “sole question” before the U.S. Supreme Court (despite the Montana court’s additional due process ruling) was the Sixth Amendment issue. The Court concluded that all signs pointed toward not applying the speedy-trial guarantee to sentencing, largely because the “presumption of innocence protection,” which is “at the heart of the Speedy Trial Clause,” is extinguished once a defendant is convicted. (The Court quickly noted that “we do not mean to convey” that other provisions of the Sixth Amendment that protect other interests don’t apply to sentencing, for example, “the right to defense counsel” in “some postconviction proceedings.”)

Rory Little, Opinion analysis: “Speedy trial” guarantee does not apply to sentencing, SCOTUSblog (May. 19, 2016, 8:30 PM), http://www.scotusblog.com/2016/05/opinion-analysis-speedy-trial-guarantee-does-not-apply-to-sentencing/