Criminal Defense Training For Pro Bono Attorneys

Criminal Defense TrainingFor Pro Bono Attorneys

John Benson, Director of Criminal DefenseMarissa Claxon, Staff Attorney

Shannon Murphy, Attorney Fellow

ARREST & DETENTION

• Most criminal cases are initiated by arrest– Some misdemeanor cases may be initiated by

summons (letter in mail)

• After arrest, detained at police station– Investigation: crime and person

• If charged:– Misdemeanor cases: often receives bond at police

station– Felony cases: transferred to Central Bond Court

Criminal Defense Training

BOND

• Central Bond Court: 773-869-5849– 2650 S. California Ave, Room 100– 11:45 am (11:00 am on weekends)

• 725 ILCS 5/110-5: Determining the amount of bail and conditions of release

TIP: Pre-trial Services report


BOND

• 725 ILCS 5/110-6: Bond increases and denial of bail– (a) verified– (a) new facts– (c) reasonable notice

TIP: courtroom idiosyncrasies


FORMAL CHARGING

• 725 ILCS 5/111-1: Method of prosecution

1. Complaint

2. Information

3. Indictment


FORMAL CHARGING

• 725 ILCS 5/109-3.1: Timeframe – 30 days from custody– 60 days from arrest (on bond)

TIP: Not practically enforceable


FORMAL CHARGING

• 725 ILCS 5/111-3: Form of Charge

1. Examine charging document

2. Read statutes


FORMAL CHARGING

• 725 ILCS 5/111-5: Formal Defects1. Examine charging document

2. Read statutes

TIP: Complaint law is highly specific. It is based on notice and jeopardy.


PRELIMINARY HEARING• 725 ILCS 5/109-3: preliminary examination

– (a) probable cause– (b) hearing– (c) witnesses called– (d) motion to suppress*

TIPS: 1. Ask open-ended questions2. Ask foundational questions3. File written trial demand


PRELIMINARY HEARING

• Must order and pay for transcript– 26th Street: 773.674.6065– Branch Courts: 312.603.8404

• 725 ILCS 5/111-2(a): Waiver– Diversion Programs– Plea


PRELIMINARY HEARING

• 725 ILCS 5/112-4 (b)

• WARNING: after a finding of no probable cause, prosecutors may seek to indict

TIP: Consider early plea negotiation


GRAND JURY

• 725 ILCS 5/112-6: Secrecy of proceedings

• 725 ILCS 5/112-7: Transcript


FINDING OF PROBABLE CAUSE

• 21 days after a finding of probable cause, the case continued for assignment

- Chief Judge’s courtroom

- 2650 S. California Ave, Room 101

TIP: No wiggle room


INDICTMENT

• Generally, defense learns of indictment in preliminary hearing courtroom

• Case continued for assignment

TIP: wiggle room


ASSIGNMENT

• Chief Judge – Room 101

• Call beings at 9:00 am sharp

• Case immediately assigned to courtroom in building OR given date for assignment in Bridgeview or Skokie

TIP: Can call clerk day before to determine where case is assigned (773-869-3157)


ARRAIGNMENT

• 725 ILCS 5/113-1: Procedure at arraignment– File Appearance and Motion for Discovery

• Arraignment “magic words”:– Seek leave to file appearance– Waive formal reading– Enter a plea of not guilty – Request a by agreement status date


DISCOVERY

• Supreme Court Rules 411 – 415

• Initiation (Rule 411): starts at arraignment

• Felony: tendered at court

• Misdemeanor: sent in mail (business card)


DISCOVERY

• Non-exhaustive list of basic discovery from state:- Incident Report- General Offense Report- Arrest Report- Supplemental Report - Detective Supplemental Report- General Progress Report- Detective Close-Out Report

Rule 412: Disclosure to the accused – State must provide defense with written answer (Read entire rule)


DISCOVERY

• Important rules for obtaining additional discovery:

– Rule 412(f) flow of information and (g) other governmental personnel: Burden on state

– Rule 412(h): Discretionary disclosure: Judge can order (catch-all)


DISCOVERY• Defense must file a written answer (Felony) • Rule 413: Disclosure to prosecution

– Answer Must Include:• Affirmative defenses – insanity, self-defense, intoxication

(voluntary or involuntary)• Alibi – place • Witnesses and written statements of witnesses• Known Convictions of witnesses• Physical Evidence and Scientific Reports


DISCOVERY

• Rule 415: Regulation of Discovery

– (a) Investigations Not to be Impeded

– (b) Continuing Duty to Disclose: If new information is learned, must notify


SUBPOENAS

• Returnable to court on next court date

• No fees

• Compulsory process – 6th Amendment


SUBPOENAS

• POLICE: – 3510 S. Michigan Avenue, 60653– Records: Keeper of Records– Appearance: Police Officer (star number)

• 72 hours notice for appearance

– Delivery rules change, call subpoena unit• CPD subpoena unit 312-745-5603


SUBPOENAS

• EVIDENCE TECHNICIAN PHOTOS:– E.T. referenced in police reports– Subpoena: Keeper of Records, Graphic Arts

Department, 3510 S. Michigan Ave 60653

TIP: subpoena on your own


SUPBOENAS

• 911 CALLS AND EVENT QUERIES: - 911 call: court order to preserve within 30

days of call, followed by subpoena - Event query: subpoena sufficient, no time limit

- Keeper of Records, Office of Emergency Management and Communications, 1411 W. Madison, 60607

• OEMC subpoena unit 312-743-1829

TIP: Slow to respond


SUBPOENAS

• HOSPITAL:– Call to determine method– Need to attach HIPAA release from client or

court order

TIP: write “photocopies will suffice in lieu of personal appearance”


SUBPOENAS

• AMBULANCE OR PARAMEDIC REPORT:– Referenced in police reports– Keeper of Records, Chicago Fire Department,

10 W. 35th St. Room 1350, 60616– Need release (CFD form preferable)

TIP: Watch for if client taken to hospital


CONTINUANCES

• 725 ILCS 5/114-4(a): “The defendant or the State may move for a continuance. If the motion is made more than 30 days after arraignment the court shall require that it be in writing and supported by affidavit.”

TIP: Be aware of the statute


CONTINUANCES

• Generally speaking made orally (not in writing) – Types:

• By agreement• Motion state (Defendant may or may not demand trial) • Motion defendant • Order of Court

• File written Motion for Continuance if case is set for trial and need to take off trial call– Motion should include reasons for continuance– May want to advance case to re-set for trial


DEMAND FOR TRIAL

• 725 ILCS 5/103-5: Speedy Trial – File written trial demand– 120 days if in custody– 160 days if out of custody

TIP: By agreement dates toll the statute


PRE-TRIAL MOTIONS

• Substitution of Judge: 725 ILCS 5/114-5– File written motion, must allege prejudice – Must file within 10 days of being placed on

the judge’s trial call– Name one judge as of right– If charged with Class X felony, name two – If multiple defendants, each defendant can

name one judge as of right


PRE-TRIAL MOTIONS

• Motion to Suppress Confession: 725 ILCS 5/114-11

• Motion to Suppress Evidence Illegally Seized: 725 ILCS 5/114-12


PLEA NEGOTIATIONS

• Prosecutors are authorized to bring, reduce and dismiss charges – Defense attorney has an ethical obligation to

tender all offers to client

• Drug cases: offer typically at arraignment • Other cases: Prosecutor usually has to

contact complaining witness first


RULE 402 CONFERENCE

• Supreme Court Rule 402: the judge can join in the plea negotiations upon agreement of the parties– Client must consent and cannot request a new judge

after a conference – Conference may be held at bench or in chambers– Prosecutor will disclose information regarding the

allegations and client’s criminal history– Defense attorney should be prepared to present

evidence in mitigation– Judge will determine sentence upon plea


PLEA

• Read Supreme Court Rule 402• Admonish client of rights and consequences:

– Right to plead guilty or not guilty– Right to trial (jury or bench)– Right to testify or remain silent– Right to call and cross-examine witnesses– Sentencing range – Immigration consequences (Padilla v. Kentucky)– Other possible consequences (?)


PLEA

• Written Waivers: Client must sign waivers when pleading guilty– Waive Jury Trial (Felony & Misdemeanor)– Waive Pre-Sentence Investigation (Felony

Only) 725 ILCS 5/5-3-1

TIP: Generally located on bench, ask clerk


TRIAL

• File written answer to discovery (Felony)– Usually filed on court date when trial date is

scheduled

• Subpoena defense witnesses


TRIAL

• Client has three fundamental rights:– To plead Guilty or Not Guilty– To have a Bench Trial or Jury Trial

• For bench, must waive right to jury trial in writing

– To Testify or Remain Silent

• Defense attorney may advise client but client must make ultimate decision


SENTENCING

• Pre-Sentence Investigation 725 ILCS 5/5-3-1• Sentencing hearing 725 ILCS 5/5-4-1• Factors in aggravation/mitigation 730 ILCS 5/5-

5-3.1 • See handout• See Illinois Sentencing and Disposition Guide

by Gino L. DiVito


DISPOSITIONS• Dismissals

– SOL (stricken off with leave to reinstate) • Prosecutor may seek to reinstate case within 160 days• Client will get letter in mail with new court date

– Nolle Prosequi: case cannot be reinstated– Diversion Programs: dismissal upon completion

• Theft school – first time misdemeanor retail theft; requires attending class on a Saturday morning and paying a fee

• Drug school – for class 4 or lower with no prior drug offenses; requires attending classes and paying a fee

• Prosecutor has paperwork; judge must sign


DISPOSITIONS

• Supervision: if client completes successfully, not a conviction (most misdemeanors eligible)

• Convictions:– Probation– Conditional Discharge– Incarceration

• Note: prosecutor may request additional conditions, such as SWAP or community service


POST-TRIAL MOTIONS

• Motion for New Trial: 725 ILCS 5/116-1– Must file written motion

• Only issues raised are preserved on appeal

– Must file within 30 days

• Motion to Reconsider Sentence– Must file written motion


NOTICE OF APPEAL

• Must file within 30 days• File in clerk’s office or in trial courtroom

– Form is in clerk’s office

• Court can appoint Office of the State Appellate Defender

• WARNING: As soon as you file a Notice of Appeal, you divest the trial court of jurisdiction; therefore, you cannot file a Notice of Appeal and then other post-trial motions


Criminal Defense Training For Pro Bono Attorneys

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