NLG Presentation
Updated 2012, 2015 and June 2020
By: Emmanuel Andre, Janine Hoft and Melinda Power
Introduction
The murder of George Floyd in Minneapolis by police officers touched off unprecedented global protests against police brutality, anti-Blackness and white supremacy. His murder was immediately preceded by the murders of Breonna Taylor, Tony McDade, and Aumaud Arbery. The spark recently ignited by these murders follows the smoldering of the inability to enact fundamental change as previously demanded in response to the outrage expressed after the police murders of Michael Brown in Ferguson, Missouri; Laquan McDonald and Rekia Boyd in Chicago and so many other victims of racist and brutal murders at the hands of police and white supremacists. Thousands came out into the streets of Chicago to take part in this momentous moment to say “enough is enough.” Chicago Police reacted by arresting an estimated 2000 people, mainly charging arrestees with ordinance violations and misdemeanors. We come together today because we have all volunteered to support those arrested and together defend them to our utmost collective ability against these charges.
The National Lawyers Guild, through its Mass Defense Committee, has represented activists arrested at demonstrations promoting issues of justice for many years. From supporting solidarity with Central America, healthcare and dignity for people living with AIDS, LGBTQ, disabled activists, anti-NATO and Occupy, the NLG has organized lawyers to provide legal defense and representation. The NLG is proud to come forward in this moment to be a part of and support those opposing anti-Blackness and white supremacy. This training focuses on preparing attorneys with little criminal defense experience or those desiring a refresher to feel more comfortable representing clients who are charged with ordinance violations or misdemeanors
This is an unprecedented time both because of the historic scope and reach of the Black Lives Matter protests as well as the impact of the COVID-19 pandemic. The pandemic has caused court procedures and proceedings to be held remotely and for procedures to be subject to change quickly and unpredictably. Accordingly, these procedures outlined are subject to change as COVID-19 recommendations and policies change.
Representing Political Clients
Those arrested during these recent demonstrations and uprisings are entitled to vigorous, creative and supportive representation, recognizing the particular political context and import of their arrests and prosecutions. Political clients need the same information as to their available options as any other criminal defendants but some may view their involvement in the so-called criminal justice system in a different way than an individual arrested in another context. Some may not want to raise technical defenses and others may have qualms about expressing “guilt.” Others may want to creatively and collectively challenge the issues in the form of unique motions or trial defenses. It is important for attorneys to assist the political client in navigating the system while identifying and respecting an individual client’s unique concerns and goals.
Assignment of Lawyers to Clients
The Mass Defense Committee of the NLG has compiled a list of all arrestees desiring representation and will try to appropriately match them with available attorneys. The Mass Defense Committee will try toassign attorneys to a particular court date, time and location and provide attorneys in advance of the court date with the names of potential clients appearing, any available contact information and an identification of the particular charges faced by the client. First Steps
- Attorneys should contact clients in advance to introduce themselves, verify information, review the actual charging document or bond slip and discuss a client’s understanding of the process and their expectations.
- We also strongly encourage attorneys to discuss, in person when possible, remotely online, or by telephone, the case with the prospective client.
Get the client’s version of events and get names and contact information of witnesses. t would be helpful to have an idea in advance of the court date whether a client wants to enter into plea negotiations in an effort t to quickly resolve their case, is willing to pay a fine or do community service as part of a plea agreement, or whether the client will only accept a dismissal or wants to fight the charge and proceed to trial.
In taking these initial steps and meeting with the client, it is important to consider and reflect on the racial, social, and economic biases that may be at play in the case. Furthermore, the racial and political nature of these cases make it important for attorneys to also assess their own personal biases and potentially adjust their own actions accordingly to best represent their clients. Recognition of those differences and biases is an important first step and continued communication with the client and other attorneys in this collective endeavor is imperative.
Representation of Clients Charged with Offenses
Although many minor charges are dismissed on the first court date, the attorney should be aware of the options available in defending a client. Prosecutors in other cities have announced in advance that they will not pursue the prosecution of lesser charges but the Chicago authorities have been silent thus far. Representation of a client charged with an offense can be a unique challenge much like unraveling a mystery. An evaluation of each case includes reviewing the specifics of the charge and identifying the police version of events compared with a client’s version. You probably won’t have access to the charging document or the arrest reports until you get to court.
Here are some questions that you will want to address. Can the prosecutor meet its burden to prove each and every element of the crime charged? Are there technical defenses to the charge, including did the police identify the wrong offense or fail to adequately prepare the charging documents? Is there a factual defense to the charge or can facts be presented that deny the stated offense? Will a bench or jury trial be an appropriate and desirable method to raise issues or present defenses? Are there witnesses, videos, documents (i.e. medical reports) which corroborate what your client says happened? Is there BWC (body worn camera) from the police? Unmanned aerial devices or drones? Social media monitoring?
Most of the charges from the recent uprising are being prosecuted in the misdemeanor courthouses rather than the municipal courthouse on Superior Street. Charges may include disorderly conduct as a misdemeanor or a city ordinance violation, curfew violations, criminal trespass or reckless conduct. An arrestee has a right to a jury trial only if the charge carries the potential for jail time and if not a jury trial must be purchased for $250 by paying the Clerk of the Court. The case will then be transferred to Room 303 at 555 W. Harrison. A trial will not take place on an initial court appearance as generally judges provide each side with one continuance and therefore the defense attorney will have an opportunity to obtain police reports and other documents, visuals, evidence or witnesses necessary for a trial. Knowledge about the judge who will hear the case is indispensable information. Information can be obtained from other attorneys who have experience with the judge and the public defenders in the judge’s courtroom. Prior to the initial court appearance, attorneys will want to review the statutory elements of the charge and may want to prepare certain documents as discussed below. The Mass Defense Committee has tried to gather information from arrestees as to what they are charged with as well their contact information.
Potential Charges Generally Anticipated in a Demonstration Context
People arrested in Chicago for what the police consider minor offenses are usually either given a City of Chicago ordinance violation citation or charged with a misdemeanor. Common applicable ordinance violations include parading without a permit, disorderly conduct and pedestrian traffic offenses. There is also an ordinance violation for resisting arrest.[1] In the instant moment, generally folks are charged with disorderly conduct, criminal trespass or curfew violations that are being prosecuted in the state misdemeanor courts. In misdemeanor or Branch courts, there is a state’s attorney who prosecutes misdemeanor violations of state law and a corporation counsel responsible for prosecuting city ordinance violations.
I. Representing Client Charged with an Ordinance Violation
With regard to the most recent arrests, ordinance violations are indicated through the code numbers indicated in the charge box on the bond slip arrestees received upon being released from custody. The bond slip also indicates the date, time and location of the first required court appearance. However, due to Covid-19 some court buildings remain closed and initial court dates should be confirmed and verified through the Clerk of the Circuit Court of Cook County’s web site. (Cookcountyclerkofcourt.org) Attorneys may register to access a portal on the website that provides information.
An ordinance violation may be issued by the Chicago Police Department for a violation of the City of Chicago Municipal Code in the form of a “ticket” that looks somewhat like a traffic ticket if they are charged with an ordinance violation.
The ticket will provide the following information:
–Step 1 is in the middle section of the ticket. On the left hand side of the ticket are pre-printed numbers facing vertically which represent a client’s ticket or case number. When an attorney files an appearance, this number is put on the right side of the appearance form.
– On the left side of Step 1 are the charge and the Municipal Code violation number. The Municipal Code number identifies the chapter and subsection of the violation and defines the elements of the offense. The Code can be viewed by downloading the “Municipal Code of Chicago”. A copy of the Chicago Municipal Code is available on line at http://www.amlegal.com/library/il/chicago.shtml and through the city clerk at www.chicityclerk.com. (See, e.g., Exhibit 1, copy of text of ordinance violation: 8-4-010 Disorderly Conduct).
–Step 2 section lists the alleged action done by the client which formed the basis for the arrest.
The bottom of the ticket states the date and time of the court appearance.
Court Location and Filing Attorney Appearance
Municipal Administrative Hearings are held at 400 W. Superior just west and north of the Chicago Loop. [Note, meter parking is available on Chicago Avenue and nearby cross streets.] Sometimes in mass arrest situations, an attorney can contact the city prosecutor in advance in an attempt to resolve cases prior to the first court appearance. Unlike in misdemeanor court, the ticket or charging document is prima facie evidence of the offense and a complainant police officer is not required to be present in order for the city to prosecute the case. Arrestees may also negotiate the resolution of a case through an attorney and avoid a personal appearance.
When arriving at 400 W. Superior, everyone, including attorneys, must go through a metal detector. The courtrooms are located to the left and the particular courtroom number will be identified on the client’s ticket. In the hallway outside the courtrooms sits a clerk at a desk who can provide attorney appearance forms that must be completed and returned to the clerk. A copy of the appearance should then be brought into the courtroom.
Courtroom Proceedings
In the courtroom there will be an office right off the courtroom where the Corporation Counsels are located. Check in with them first. Sometimes they come in and make an announcement and collect a copy of everyone’s ticket and attorneys provide their appearance forms with a client’s ticket to the Corporation Counsel. Ask theCorporation Counsel ifthey plan to proceed with the client’s case. If they don’t, the case will be called and they will let the administrative law judge know and a printed order will be generated indicating the case is dismissed.
If the City plans to proceed, they will make an offer to resolve the case. Generally, the offer is a monetary fine up to around $100.00. Alternatively, a client can do community service through the City but there is an additional administrative cost. The defense attorney may know in advance whether the client wishes to resolve the case by a plea and if so is able to pay a fine or do community service through the City. If the Corporation Counsel wishes to proceed with the case, ask what is being offered in exchange for a plea and then you can communicatethe offer to the client and a decision made about whether the offer is acceptable to the client. Unlike Cook County courts that allow community service to be completed at any not for profit organization, the community service must be done through the City.
If the client wishes to contest the charge, they have a right to a trial or may request a continuance. The trial will take place in the hearing room and the burden is “a preponderance of the evidence.” The Hearing Officers are practicing attorneys and not full time judges. They are appointed by the City and generally are unfamiliar about protest type cases. The City can proceed by the sworn allegations on the ticket and need not present a live witness. The defense can present live witnesses, visuals and documentary evidence to overcome the preponderance of the evidence standard.
Spectators can be in the courtroom. At the conclusion of the trial, the Hearing Officer will make a finding and generate a printed order. If the finding is guilty, the hearing officer generally will assess a fine and court costs. An attorney can try to negotiate with the corporation counsel about the penalty, either by negotiating a reduction of the fine or requesting community service. If the client is found guilty, and is ordered to pay a fine or fee, it can be paid by credit card at a machine located further north of the metal detectors at the entrance of the building. An attorney may be able to negotiate a time period within which the fine and costs must be paid.
An attorney may also try to negotiate a resolution of the case before court by contacting the Corporation Counsel’s office at 400 W. Superior if the client indicates in advance they are willing to enter into a plea. A continuance may be requested, without the client’s appearance, if the client is unable to attend court. An arrangement may be worked out in advance and possibly obviate the need for the client to appear. The attorney would still go to court, file an appearance and tell the Corporation Counsel that an agreement was reached in advance. A printed order will be generated as discussed above identifying the agreement that was reached to pay a fine and/or complete community service.
II. Representing Client Charged with Misdemeanor Offenses
A misdemeanor offense is a violation of state law for which the maximum penalty upon conviction is no longer than 364 daysin jail. Misdemeanors are classified according to the maximum penalty with a Class C misdemeanor carrying a maximum 30 days in jail and $1500 fine, Class B misdemeanor carrying a maximum 6 months in jailand $1500 fine and Class A misdemeanor carrying a maximum of 364 days in jailand a $2500 fine. Fines are generally not imposed in misdemeanor cases. Periods of deferred prosecution, supervision or probation may be available dispositions of misdemeanor cases except for certain identified offenses, including a charge of resisting arrest. If supervision is an available disposition then the charge is technically dismissed after a period of time and may be expunged from your arrest history.
Ordinance violations prosecuted in state court generally follow similar procedures although the potential penalties are less and the prosecutor is a corporation counsel and not a state’s attorney,
Preparing for Initial Court Appearance
The bond slip given to a client when released after their arrest contains helpful information. The following information may be found on the bond slip (see attached Exhibit 2):
On the upper right hand, the bond will have either the letter D or I. A D bond indicates that money, usually $100.00, has been paid to be released from custody. An I bond means that the arrestee is released on his/her own recognizance and no money has been paid for her/his release
In the middle of the bond slip is a section entitled Court Appearance. It will identify the address of the court, the branch number of the court and the date and time for the court hearing.
Right above that is a box which contains the charge. It will refer to the State of Illinois criminal code and begin with the chapter number 720 followed by numbers which refer to the specific charge. A review of the annotated statute identifying the criminal charge and related case law yields a wealth of information.
Note, when a person is on bond, they are not permitted to leave the northern district of Illinois. If a client is planning on travelling somewhere, they may inform you of that. There is a procedure by which a person can file a motion to advance the court date and get a written order “enlarging” the bond or permitting a person to leave the jurisdiction of the court. It is time consuming and of questionable necessity. If the client wants to do that, we suggest you let them know they can go to room 1006 of the Daley Center, prepare and file a motion to advance their case for a date convenient to them, and go to their assigned court that day and get an order expanding the bond.
Initial Court Appearance and Court Location Information
An attorney who shows their bar card and Cook County identification card at the misdemeanor courthouse will not need to go through the metal detector or be searched. The attorney will want to find out if the client is present, and then file an appearance form with the clerk in the courtroom. (See attached Exhibit 3). Appearance forms are found in the area of the clerk’s desk or may be located by asking a public defender or sheriff in the courtroom if the clerk is not around. An attorney may also prepare his or her own version of the appearance form in advance. The court case number may be found on a call sheet which is either in front of the clerk’s area, posted outside the courtroom or can be obtained by asking the sheriffs or the public defenders for the call sheet.
There are advantages to arriving 10-15 minutes before the scheduled court call. An attorney who arrives prior to the time of the court call may request to see the court file before the case is called. The file should contain the Complaint, or formal charge and the attorney is entitled to a copy, but at the very least it is important to carefully review the complaint to determine the specific conduct the charge alleges your client engaged in. You need to ask the clerk for a copy of the charge. If there is more than the original of the charge in the file, the clerk will generally give you a copy of the charge. However, if there is only the original, you have to ask if either the clerk will make you a copy or let you take the original and make a copy in the clerk’s office. Also, the arrest report should be in the file which will include a narrative of the police version of what happened and the basis of the charge, which you will also want to review. Often the PD has the arrest report, so you can check with the PD in the courtroom to see if he/she has your client’s paperwork. An attorney must file an appearance and tell the clerk that the case is ready in order to have it called.
Another advantage to arriving early is that as soon as you tell the clerk that you are ready to have your case called, it will be put in the pile of cases to be called. Private attorneys’ cases are generally called first, so the sooner you tell the clerk you are ready, the sooner your case should be called.
On the Arrest Report in the upper right hand corner are the following #s which are useful to obtain subpoenaed material or to get the Office of Emergency Management Communication[2] recordings and the body worn camera videos (BWC).
They are:
The CB(Central Booking) # and the IR (Individual Record) # may be used to obtain the criminal history of your client generally for purposes of expunging a client’s record, the RD (Records Division)# and Event # may be used to get reports, O.E.M.C. recordings and subpoenaed material.
We suggest you ask the state’s attorney if they plan to proceed with the case or argue why the charge should be dismissed. They may know whether they plan to proceed or they may say they will see if an officer checks in or what the officer says about your client. Generally, if the police officer is not present in court and hasn’t notified the state’s attorney with a good reason for his/her absence, the court will dismiss the case. If the case is dismissed or “stricken on leave to reinstate” (SOL-ed) an attorney should file a written trial demand. (See attached Exhibit 4) When the case is first called, the judge generally looks to the state first and if the state wishes to proceed they will ask the judge to pass the case in order to “pre-try” the case with defense counsel. The state should then tell you what the offer is and you can negotiate and argue with them for a resolution more beneficial to your client, if your client is interested in resolving the case by way of a plea on the first court appearance.
Possible Offers from State’s Attorney to Resolve Charge
–Deferred Prosecution which is the best alternative to an outright dismissal or a victory at trial. It’s given for first time offenders, and the client doesn’t have to admit or stipulate to any facts. Community service at a not-for-profit may be required.
–Community service at any not-for-profit in exchange for dismissal. Upon completion of the community service, the client will need to get a letter from the not-for-profit verifying that he/she completed the required number of hours. The client will need to bring this letter to court. The case will not be dismissed until the letter is presented to the court. Judges have allowed clients to present the letters without their attorney’s presence and have waived the client’s presence if the attorney presents the letter.
– Supervision which lasts from one to twelve months. During that time, the client is not supposed to break the law. If the client successfully completes the supervision, two years from the termination of the supervision, the arrest can be expunged. Supervision does not count as a conviction under Illinois state law but a supervision finding will have immigration consequences for an undocumented client. Supervision may be used in subsequent sentencing determinations within the two years and pursuant to federal sentencing guidelines.
required.
–Conditional Discharge for one to twelve months. Unlike Supervision, upon completion of the conditional discharge your client may never expunge their arrest and a conviction is identified on their record. Client does not need to report to any agency during the term of the Conditional Discharge.
-Probation or Jail Time generally is not an appropriate or acceptable plea agreement for a misdemeanor charge.
An arrestee who is charged with most misdemeanor offenses as a result of political expression or activity generally can get supervision or deferred prosecution unless they have a significant criminal background.
Creative Motion Practice
Prior to trial, a criminal defendant may bring a motion to dismiss. Depending upon the facts of the case, such a motion may be appropriate to avoid a trial. In the Occupy cases, a motion to dismiss the park district ordinance violations based on the First Amendment was successful in avoiding trials. See, e.g. 725 ILCS 5/114-1.
Trial of Misdemeanors
If a client wishes to proceed to trial, it is important to file a discovery motion. (See attached Exhibit 5). [3] The client can request a bench trial, which is a trial with a judge at the branch court where the case is first held. The trial is generally continued for another date so that both sides can get needed discovery. Alternatively, a jury trial can be requested. If a jury trial is requested, the case will be sent to room 304 at 555 W. Harrison. A court date within a week or more will be given. The client will need to understand that it may be several months before the trial is actually held due to obtaining discovery and court back log and may require multiple court appearances before a trial actually commences. Additional plea negotiations may take place during these interim appearances. An attorney should be prepared to subpoena records and evidence for a trial. A subpoena can be prepared for additional documents that the police maintain but do not place in the court file. (See Exhibit 6, copy of subpoena for documents in a misdemeanor case). A subpoena, in addition to uncovering additional information, can send a message to the prosecutor that the defense of the case will leave no stone unturned and will require the expenditure of the state’s resources. It is essential to serve the subpoena as soon as possible but in any casewithin 30 days of the event prompting the client’s arrest to assure that all available documents and evidence will be preserved. Additionally, a court order to preserve and turn over any 911 calls or O.E.M.C. can be entered on the first court date and then served on O.E.M.C, within 30 daysof the date of arrest to preserve any audio communications regarding the case. (O.E.M.C. order, Exhibit 7).
Trials may be consolidated with other related cases and more experienced criminal defense attorneys are available for consultation about, preparation for and conducting a trial. NLG attorneys will work together with you if you have questions and to help you defend clients and create trial strategies.
The State must prove each and every element of the offense charged beyond a reasonable doubt to sustain a conviction.[4] Carefully consider whether the State can technically prevail on each element and creatively argue that the burden has not been met on each element. Any element including language such as “unreasonable” or “without authorization” should be analyzed in the context of the facts of each case. Many times police arrest individuals although they are acting reasonably and within their rights.
Affirmative Defenses
Consider any potential affirmative defenses to the charge. 720 ILCS 5/3-2. For example, political defendants have had success raising the defense of necessity in Illinois. Illinois law specifically provides for the defense of necessity. 720 ILCS 5/7-13. The statute sets forth:
Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.
The defense of necessity is not always favorably accepted by judges but can have an important impact on juries if allowed. NLG attorneys were first educated on this defense by activist clients. Defendants have been able to introduce testimony and evidence as to why they took the actions they did and why it was reasonable and necessary for them to do so. The advantage of this defense is you could argue that you should be able to present evidence as a part of your defense, for example, on the facts and history of racism and anti-Blackness, police brutality, as well as the efficacy of protests in changing public opinion and the law as part of your defense. This defense requires a significant commitment from the attorney, the client, potential witnesses and overall resources. But, the use of the defense can make an impact on you, your client, court personnel and the public.
Good luck,
thanks for your commitment and willingness to support your clients!
[1] Additionally, but not applicable to these arrests, certain offenses committed on federal property, such as blocking the doors of a federally owned building or trespassing on federal property may be similarly charged by Federal Protective Service Officers (FPS) as violating federal codes. The FPS can process these federal charges or relinquish jurisdiction and request arrest by the CPD. Common applicable misdemeanors include state disorderly conduct, criminal trespass, resisting or obstructing, mob action and reckless conduct.
[2] O.E.M.C. recordings include any 911 calls or police messages pertaining to the arrest and the incident leading to the arrest.
[3] We also suggest that you prepare a subpoena to the City of Chicago police department asking for arrest reports and supplemental reports. If your client claims injuries, also subpoena officer battery reports (if applicable), TRRs, and color arrest photos of the client. Subpoena forms can be obtained online at the Clerk of the Circuit Court’s website. The Office of Emergency Management and Communications can also be subpoenaed. https://oemcsubpoena-chicagops.govqa.us/WEBAPP/_rs/(S(dz2vk3lisrzk02fb2malqznh))/RequestOpen.aspx?rqst=13&sSessionID=67167244194I[HUHGBGLONUYSWNNTWPZ[PBMLIPI
[4] A corporation counsel must prove each and every element of an ordinance violation by a preponderance of the evidence.
