CRIMINAL DEFENSE

"The prisoner did not understand that the officials in the courtroom were as accustomed to the dramas and tragedies of life and were as blunted to the sight of them as hospital orderlies are to the sight of death, and that the whole horror and hopelessness of his position lay just in this mechanical indifference."

- Anton Chekhov

The law governing even an apparently simple criminal case can be complex and confusing. Procedural issues unique to criminal practice arise in almost every case. Constitutional issues are implicated at every stage.

In addition to strictly legal questions, the attorney in a criminal case must be able to work with a wide array of investigators and experts in such fields as forensic pathology, trace microscopy, hair and fiber identification, toolmark identification, firearms identification, chemistry, pharmacology, fire and arson investigation, accounting, psychiatry, criminal profiling, nuclear DNA, mitochondrial DNA, genetics. and statistics.

At every step of the process, decisions have to be made with an understanding of what their implications can be many moves ahead. Only many years of experience in criminal practice at every level of the system can provide the knowledge and confidence to make the right decisions.

Few experiences in life can be so confusing, and so frightening, as having to face a criminal investigation or prosecution. I am there not only to represent you but to be sure that you understand what is happening, and why, and how; to be sure that you understand your rights and your choices; and to guide you through what can be an unnerving process.

Whether a criminal case is simple and straightforward or vast and complicated, whether the charges are grave or relatively minor, whether its is prosecuted in a state or a federal court, the basic structure is the same.

Every criminal case begins with a formal charge, or accusation, presented to the court by an arm of the government.  Minor charges may be initiated by the police with the approval of the prosecutor.  More serious charges must be filed either by a grand jury or by the prosecutor with the approval of a judge.   The charge, whether it is called a complaint, an indictment, or an information, states what the accused person is supposed to have done and what law the alleged conduct is supposed to have violated.  This is the accusation against which the defendant, the person accused of the crime, must defend.

Soon after the charge is filed there begins the process of discovery.The prosecutor must disclose to the defendant's attorney the evidence on which the charge is based.  Precisely what information must be depends on the nature of the charge and on whether the case is in state or federal court.  Similarly, the defendant my be required to disclose some information about defense evidence to the prosecution.  The purpose of discovery is be sure that both sides are able to investigate the accusations and prepare for trial, and to eliminate trickery and surprise.  Neither trickery nor surprise, unfortunately, has been completely expunged from the process.

Once discovery is well under way, the court may be faced with legal questions to decide.  Does the charge actually state an offense?  Even if the facts alleged in the charge are true, has the defendant really broken any law? Have the police or the prosecution used illegal or improper means to obtain evidence?  If so, can this evidence be suppressed by the judge so that the prosecutor cannot use it at trial?  Is there information that the prosecution would like to use that is foreclosed by the rules of evidence? These and many other legal issues are addressed to the court in preliminary motions, which are formal requests to the judge to decide legal disputes before the trial begins.

The discovery provided by the prosecution is the beginning, but only the beginning, of the defense investigation.  The investigation of a criminal case may include interviews with potential defense and prosecution witnesses, examination of documents and records, analysis of evidence by experts, and visits to the scene of a crime.  What needs to be done depends on the case.  In some cases a defense attorney will need to use the services of an experienced investigator.

While a simple misdemeanor case may be tried at the first or second court appearance, a serious felony may be ready for trial only after a long preliminary process.  Some cases never go to trial, either because the prosecutor becomes convinced that the charge cannot be proved, because the judge suppresses vital prosecution evidence or, on the other hand, because the defendant prefers to plead guilty, usually on terms negotiate by counsel.

If the defendant is convicted, whether by a plea of guilty or after a trial, the attorney has a major role to play in assisting the court to determne an appropriate sentence.  Illinois state court judges enjoy broad discretion in sentencing within the boundaries set by the legislature.  Federal court judges, on the contrary, rely on a complicated matrix of guidelines to determine an "advisory" sentencing range, although they are no longer required to actually impose sentence within this range.  Under either system, the role of the defense attorney in sentencing is critical.

Every case is unique, as is every person accused of a crime.