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Criminal Defense Training For Pro Bono Attorneys PowerPoint Presentation
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Criminal Defense Training For Pro Bono Attorneys

Criminal Defense Training For Pro Bono Attorneys

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Criminal Defense Training For Pro Bono Attorneys

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  1. Criminal Defense TrainingFor Pro Bono Attorneys John Benson, Director of Criminal Defense Marissa Claxon, Staff Attorney Shannon Murphy, Attorney Fellow

  2. Criminal Defense Training 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

  3. 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

  4. Criminal Defense Training BOND • 725 ILCS 5/110-6: Bond increases and denial of bail • (a) verified • (a) new facts • (c) reasonable notice TIP: courtroom idiosyncrasies

  5. Criminal Defense Training FORMAL CHARGING • 725 ILCS 5/111-1: Method of prosecution • Complaint • Information • Indictment

  6. Criminal Defense Training FORMAL CHARGING • 725 ILCS 5/109-3.1: Timeframe • 30 days from custody • 60 days from arrest (on bond) TIP: Not practically enforceable

  7. Criminal Defense Training FORMAL CHARGING • 725 ILCS 5/111-3: Form of Charge • Examine charging document • Read statutes

  8. Criminal Defense Training FORMAL CHARGING • 725 ILCS 5/111-5: Formal Defects • Examine charging document • Read statutes TIP: Complaint law is highly specific. It is based on notice and jeopardy.

  9. Criminal Defense Training PRELIMINARY HEARING • 725 ILCS 5/109-3: preliminary examination • (a) probable cause • (b) hearing • (c) witnesses called • (d) motion to suppress* TIPS: • Ask open-ended questions • Ask foundational questions • File written trial demand

  10. Criminal Defense Training 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

  11. Criminal Defense Training 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

  12. Criminal Defense Training GRAND JURY • 725 ILCS 5/112-6: Secrecy of proceedings • 725 ILCS 5/112-7: Transcript

  13. Criminal Defense Training 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

  14. Criminal Defense Training INDICTMENT • Generally, defense learns of indictment in preliminary hearing courtroom • Case continued for assignment TIP: wiggle room

  15. Criminal Defense Training 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)

  16. Criminal Defense Training 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

  17. Criminal Defense Training DISCOVERY • Supreme Court Rules 411 – 415 • Initiation (Rule 411): starts at arraignment • Felony: tendered at court • Misdemeanor: sent in mail (business card)

  18. Criminal Defense Training 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)

  19. Criminal Defense Training DISCOVERY • Important rules for obtaining additional discovery: • Rule 412(f) flow of informationand (g) other governmental personnel: Burden on state • Rule 412(h): Discretionary disclosure: Judge can order (catch-all)

  20. Criminal Defense Training 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

  21. Criminal Defense Training DISCOVERY • Rule 415: Regulation of Discovery • (a) Investigations Not to be Impeded • (b) Continuing Duty to Disclose: If new information is learned, must notify

  22. Criminal Defense Training SUBPOENAS • Returnable to court on next court date • No fees • Compulsory process – 6th Amendment

  23. Criminal Defense Training 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

  24. Criminal Defense Training 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

  25. Criminal Defense Training 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

  26. Criminal Defense Training 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”

  27. Criminal Defense Training 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

  28. Criminal Defense Training 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

  29. Criminal Defense Training 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

  30. Criminal Defense Training 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

  31. Criminal Defense Training 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

  32. Criminal Defense Training PRE-TRIAL MOTIONS • Motion to Suppress Confession: 725 ILCS 5/114-11 • Motion to Suppress Evidence Illegally Seized: 725 ILCS 5/114-12

  33. Criminal Defense Training 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

  34. Criminal Defense Training 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

  35. Criminal Defense Training 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 (?)

  36. Criminal Defense Training 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

  37. Criminal Defense Training TRIAL • File written answer to discovery (Felony) • Usually filed on court date when trial date is scheduled • Subpoena defense witnesses

  38. Criminal Defense Training 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

  39. Criminal Defense Training 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

  40. Criminal Defense Training 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

  41. Criminal Defense Training 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

  42. Criminal Defense Training 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

  43. Criminal Defense Training 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