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Screenshot from 2014-09-09 10:10:38

Somebody needs to explain to me how we got to this point.  What point, you ask? The point where a man is standing on the sidewalk, minding his own business is approached and searched by the cops.

For what? They say a noise complaint.

I don’t buy that. Not even for a minute.  I’d wager your first born that the average police response time to a “noise complaint” in the Brox can be measured with a calendar.  The police have better things to do there.

Even if it were a legit “noise” complaint, there’s zero reason to search. I’ve been at places where the police showed up for noise- most notably a wedding. Nobody got searched.

Yeah, this guy is on parole. I’m not sure it should matter. If it did, why did the prosecutor drop the charges?

The real question isn’t “how did we get here” but “why doesn’t this change”. The answer to either question, of course, is the same: because as shocking as it looks, nobody really cares.

This picture has nothing to do with this post.

There are sometimes in DUI cases where a defense attorney must face two or more DUI prosecutors.

If the judge ignores his or her role as referree, and decides that he or she misses being a prosecutor (because most judges are former prosecutors), as a defense attorney you may be facing two prosecutors. For example:  Your client is a first offender DUI client.  You bargain with the actual state’s attorney for a rescission of the statutory summary suspension in exchange for a guilty plea and supervision (no conviction) on the DUI.  This way your client can avoid the expense of getting a BAIID Device installed in his car (and also save the $250 license reinstatement fee)  This represents a total savings of the cost of the BAIID Device (about $750) plus $250 reinstatement fee, or about a $1,000.  The actual state’s attorney may like this deal because his case may have a number of technical problems that may or may not cause him to lose at trial.  So this negotiation can be a win-win.  However, your judge (who misses being a prosecutor) may decide to reject the negotiation because he or she feels that they would have won the case at trial (doesn’t understand the weaknesses), and therefore you have to negotiate the case with the judge also.  So in effect you have two prosecutors on the case.

In some circumstances you could have three prosecutors on the case.  Imagine the scenario featured above, but in this case you as a defense attorney have negotiated the case with a municipal attorney.  Also in this case imagine that the county state’s attorney is one of those “tough on DUI” types.  He got elected because he felt that the “tough on DUI” slogan that he used for his campaign was why he is in office and he likes his job so he decides to “help” municipal attorneys by threatening to pull their prosecuting authority if they do DUI negotiations that he doesn’t like.  So as a defense attorney you end up negotiating with the municipal prosecutor, the state’s attorney and then the judge.

But don’t lose heart.  This all works out very well for you because when these guys don’t want to do the deal you end up taking the case to trial and because there essentially wasn’t a deal that you could recommend to your client, it’s like trying a case with no downside.  You weren’t going to take the “tough on DUI” deal, so if you lose at trial it the prosecutor’s fault.  And, as luck would have it you will win about 95% of these case because as it turns out there was a reason that the first prosecutor should have cut a deal with you.

Welcome to the wacky world of “tough on DUI” prosecution.

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock.

Edward Snowden

So secret executive orders are in the news again today.  I have to say that we can all thank Edward Snowden for that.  I have heard many politicians and some rich people say that he is no hero, but they are idiots, so there’s that.

The NSA when questioned about how the security state might get out of hand had this to say:

 

 “NSA officials have defended the legal power, which they say is limited by “extensive and multi-layered” oversight and protects people in the U.S. and around the globe.”

Read more: http://thehill.com/policy/technology/216392-dems-protest-secret-spying-law#ixzz3CCK9YFfO

However, these were the same people who gave the oversight for Edward Snowden, so there’s that.

When anyone takes some brave action in their career you will have those people who immediately say, “I was just going to do that.”  I filed a multi-million dollar lawsuit against the county last month and three other attorneys said that they were going to to that, but they just didn’t get to it.  It takes a lot of guts to spend the time necessary to file a big lawsuit, and it takes a lot of worrying about the thousands of details.  I am sure it is like that with Edward Snowden.  I don’t know a lot of people who would risk the career ending implications just for what they thought was right.

And if you noticed, his actions worked to make society better in accidental ways too.  Not only did he reveal that the NSA was reading out emails, he also showed that the NSA doesn’t watch the store by not having in place the systems to catch someone like him.  But for me what he did will always be brave.

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock.

 

 

 

Judges, you gotta love ‘em … or not.

There were two incidents last week in my neck of the woods that I found interesting that involved judges.  First, a judge assisted the bailiff in taking a hat from someone in court, and second, another judge declared that the state SHALL NOT make any offers to my client because he made the ridiculous request of asking for a jury trial.

With respect to the first incident, I got to court late (which is very rare for me, because I like to get to court do my business and leave), and while I was standing in a line of attorneys waiting to be heard by the judge, the bailiff yelled at someone to take his hat off. After the incident I was told this was the second time that the person came into court with his hat on.

Now I don’t know where the whole, you must remove your hat in court thing came from.  While some might tell you that it is a show of disrespect to wear your hat in a courtroom, I can think of a lot of other ways to more effectively show your disrespect of the court.  And, having a rule that you must remove your hat in court lest you show some disrespect of the court strikes me as a typical dumb rule like we have in today’s society.  This rule for example doesn’t stop those who want to show disrespect, and it catches people who forget they have a hat on.  Further it gives the bailiff an opportunity to bark at someone for wearing a hat in front of everyone assembled in the courtroom, thereby proving that he has some sort of authority over that space (which I had no luck finding in either the US Constitution or the Illinois Compiled Statutes).  I mean, I don’t want to be too cute here, I know that the court security officer is there to protect the judge from attack, to arrest or jail someone on the order of a judge, and to keep order in the courtroom … but it seems to me that yelling at a guy because he forgot to take off his hat is just an exercise in showing everyone that I can yell at some one and act mad (with impunity and a gun).

So that’s the set up.  Guy walks into court with his hat on for the second time (demonstrating that he forgot about the hat) but somehow showing grave disrespect to the court.  So the guy sits down and takes off his hat, and looks appropriately embarrassed because he got yelled at by the bailiff.  (Just like in elementary school, except for we are not in school).  The situation is over, except for now the judge wants to participate in this showing that they can yell at someone to everyone present.  The judge yells, “Sir, come up here.”  Then, “Give the Bailiff your hat!”

Mission Accomplished:  I can yell therefore I have authority.

Item #2

So I was entering my appearance on a case in front a judge.  I requested a police report, anything that they might use at trial and asked for a jury trial date.  The judge then commanded the state’s attorney to make no offers to my client because we had asked for a jury trial.  It seemed odd.  I ask for jury trials in felony cases routinely and no judge has ever commanded that the State make no offers to my client.

Doesn’t matter, the offers from the State in that courtroom I probably wouldn’t recommend my client accept anyway.

Just another day in paradise.

Here’s a youtube video of a person appearing in court with what appears to be a colonial three corner hat, I am pretty sure they didn’t ask him to remove it because he is a little out there, so to speak.

 

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock.

swat team

Here’s some jumbled up thoughts for you this Labor Day Weekend

 

Labor Day in the United States is a holiday to celebrate the American Labor movement.  As it turns out my great Aunts were part of the Great Sit Down Strike of 1937, so that explains a bit of my lefty leanings.  Many people will spend Labor Day with their local police departments after a DUI arrest, it turns out that in our area it is much more likely that you will spend time with the Bull Valley Police Department (statistically) than other departments for reasons I don’t understand.

Which brings me to a topic that I don’t often see written about, except here.  Are the police, and the justice system more hassle than they are worth?  I know, radical concept.  Let’s see if I can walk you through it and see what you think.

Police Departments were first formed in London, as an alternative to the military being the police.  The thought was, when the military came into ‘take care of a problem” back in those days, you could usually count their effectiveness with dead bodies and severed limbs of rioters or gang members.  Because that was thought to be a bit uncivilized they invented police departments.  Police would wear blue rather than military red to try to distinguish themselves from the police.  It is interesting that the police of today now try to look MORE like the military.

But what do the police departments accomplish?  Well, they make us wear seatbelts, stop at stop signs and slow down out driving.  They keep us safe, except of course for the times when they are the problem:

Here’s a video clip of the police harassing someone because that’s what the police do.

Nobody ever asks do we have too many police.  Our local budget for the police at the McHenry County Sheriff’s Office is 29 million dollars.  And the 400 or more Sheriff’s Deputies do not include the 27 other entities that have law enforcement officers in our county.  In our county if you call the police they come.  Sometimes they come 5 or 10 at a time.  It is not really a matter of having too few officers.

But, do they really help?  Let’s talk about the average case, not the extreme case.  The average cop interaction with the police is a seat belt ticket.  What was accomplished?  I was safer?  What did it cost me?  $65-$320 depending on which court costs were added. Where would we be without seatbelt/speeding/stop sign tickets?  Arguably richer, but what was gained by having the police stop me?

Let’s look at the extreme case.  Without the police we could imagine that there would be gangs who stopped cars on the highway and take $500 payments from them to allow them on their way.  Compare that with roadside safety checks. A municipality will collect a $500 administrative fee (using the police) if a persons license is suspended because at some point they didn’t have insurance. This payment is taken regardless of whether the person knew about the suspension.  Do the $500 payments being taken from the driver differ, from the point of the driver?  In either case he is out the $500 bucks.

Lastly, while it’s hard for a whitey like me to explain, without police there would be fewer “persons of color” expected by the police to “Respect Ma Authority.”  And fewer things for the people of Ferguson to protest or riot against.

If we didn’t have police would the world be all that different?  The answer is of course yes.  The landlords and the rich corporations wouldn’t have an essentially free force to remove people from their property, they would have to hire their own thugs, and you could argue they would be more brutal.

I hope everyone has a great Labor Day.  I wonder when we will have a Police Day?

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock. He is one of those lawyers.

How $500 ended the world

The City of McHenry has vowed to use $150,000 to prosecute (take to trial) DUI cases this year. (THIS IS A BRAND NEW IDEA THIS YEAR). This seems like it might be silly for several reasons:

1.  The number of DUIs that The City of McHenry, Illiinois has written has gone down for the last five years EVERY YEAR

2013:  63 DUI arrests,

2012  91 DUI Arrrests;

2011  97 DUI Arrests;

2009 144 DUI Arrests.

Why exactly would you want to spend more money prosecutiing FEWER DUI charges?

2.  The City has just changed attorneys representing the City in DUI cases.  Are the newer attorneys more expensive?

I wonder if it costs more to take a DUI case to trial, or to negotiate it?  I wonder if the attorney who has the contract with The City of McHenry makes more money if the case goes to trial?

I wonder if there is a little moral hazard paying an attorney more for taking DUI cases to trial.  I wonder if there is even more problems with announcing that you are going to spend $150,000 on DUIs … when there are fewer DUIs.

When do you think someone will suggest that maybe we should save some money and lower the number of police patrols because there are fewer DUIs out there?

My guess would be never.

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock. He is one of those lawyers.

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