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Criminal Defense Training For Pro Bono Attorneys

Criminal Defense Training For Pro Bono Attorneys. John Benson, Director of Criminal Defense Marissa Claxon, Staff Attorney Shannon Murphy, Attorney Fellow. Criminal Defense Training. ARREST & DETENTION. Most criminal cases are initiated by arrest

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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

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