Criminal Defense Training For Pro Bono Attorneys John Benson, Director of Criminal Defense Marissa 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: –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 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 Criminal Defense Training

FORMAL CHARGING 725 ILCS 5/111-1: Method of prosecution 1.Complaint 2.Information 3.Indictment Criminal Defense Training

FORMAL CHARGING 725 ILCS 5/ : Timeframe –30 days from custody –60 days from arrest (on bond) TIP: Not practically enforceable Criminal Defense Training

FORMAL CHARGING 725 ILCS 5/111-3: Form of Charge 1.Examine charging document 2.Read statutes Criminal Defense Training

FORMAL CHARGING 725 ILCS 5/111-5: Formal Defects 1.Examine charging document 2.Read statutes TIP: Complaint law is highly specific. It is based on notice and jeopardy. 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: 1.Ask open-ended questions 2.Ask foundational questions 3.File written trial demand Criminal Defense Training

PRELIMINARY HEARING Must order and pay for transcript –26 th Street: –Branch Courts: ILCS 5/111-2(a): Waiver –Diversion Programs –Plea 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 Criminal Defense Training

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

FINDING OF PROBABLE CAUSE 21 days after a finding of probable cause, the case continued for assignment - Chief Judge’s courtroom S. California Ave, Room 101 TIP: No wiggle room Criminal Defense Training

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

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) 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 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 Criminal Defense Training

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

SUBPOENAS POLICE: –3510 S. Michigan Avenue, –Records: Keeper of Records –Appearance: Police Officer (star number) 72 hours notice for appearance –Delivery rules change, call subpoena unit CPD subpoena unit Criminal Defense Training

SUBPOENAS EVIDENCE TECHNICIAN PHOTOS: –E.T. referenced in police reports –Subpoena: Keeper of Records, Graphic Arts Department, 3510 S. Michigan Ave TIP: subpoena on your own Criminal Defense Training

SUPBOENAS 911 CALLS AND EVENT QUERIES: 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, OEMC subpoena unit TIP: Slow to respond 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” Criminal Defense Training

SUBPOENAS AMBULANCE OR PARAMEDIC REPORT: –Referenced in police reports –Keeper of Records, Chicago Fire Department, 10 W. 35 th St. Room 1350, –Need release (CFD form preferable) TIP: Watch for if client taken to hospital 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 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 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 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 Criminal Defense Training

PRE-TRIAL MOTIONS Motion to Suppress Confession: 725 ILCS 5/ Motion to Suppress Evidence Illegally Seized: 725 ILCS 5/ 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 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 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 (?) 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 Criminal Defense Training

TRIAL File written answer to discovery (Felony) –Usually filed on court date when trial date is scheduled Subpoena defense witnesses 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 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/ See handout See Illinois Sentencing and Disposition Guide by Gino L. DiVito 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 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 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 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 Criminal Defense Training