Authors: Steve Bogira
Law enforcement corruption seems an inevitable side effect of drug prohibitions. A host of Chicago cops have gone to federal prison for extorting drug dealers in the last two decades. Bates, who lives in the
Austin police district, says no one in his neighborhood was surprised when
seven Austin officers were indicted in 1996 for extorting dealers—shakedowns are routine in his neighborhood, he says.
Reductions in civil liberties are another by-product of drug wars. In 1955 Cook County state’s attorney John Gutknecht acknowledged to a Senate subcommittee on narcotics that Chicago police were routinely arresting addicts without legal cause. The drug problem was so grave, Gutknecht said, “
that even if we must admit some of their civil rights are being violated, you have to go along with a certain amount of that fringe violation, if you see what I mean.” Everyone on the subcommittee apparently saw what he meant, as no one objected. With addicts, Gutknecht said, it was necessary “to take little extra measures.”
The little extra measures today involve frequent police searches of minorities guilty of standing on street corners. If a search turns up drugs, the officers can avoid a messy Fourth Amendment problem by claiming the arrestee dropped the drugs as the officers approached. “Subject looked in arresting officer’s direction and dropped small plastic bag containing white rocky substance to the ground,” the arrest report typically reads. Locallo’s father, August Locallo, says police officers often lied in this manner when he was on the force, and Dan Locallo says he has no doubt that officers do so today.
Bates says he’s been stopped by the police and searched on several occasions when he’s merely been walking down the street. Even when they find nothing on him but an empty pipe they threaten to arrest him—and then they pry him for information. “Who’s dealing? Where they keeping the package?” When he tells them he doesn’t know anything, they give him a whack in the chest or head, toss the pipe over a fence or into a gutter, and shove him down the street, he says.
“This drug thing is so much bullshit,” veteran defense attorney Sam Adam says. “It’s nothing but a numbers game. It’s a colossal waste of energy, money, time. It’s electing politicians, but it’s stopping nothing. Narcotics court is a joke. I see people meeting each other there and making deals—right there in the gallery! A guy from Forty-seventh Street would have
never
met a guy from O’Hare Airport—now he makes a deal! Women cannot walk down the street without being attacked in a lot of neighborhoods. Poor people cannot go to currency exchanges and cash their Social Security checks without some gangbanger grabbing them and taking the money away. Over and over violent crime is taking place—and more than half of the police department is running around trying to arrest somebody on a drug case.
“I have a lot of clients who take the position that their body is their
own,” Adam says. “They create an analogy with abortion that is very hard to refute. They say, ‘Well, I haven’t hurt anybody. I got a little toot and I went home, and I relaxed and I enjoyed it, and I watched TV and I went to sleep. I don’t understand why anybody would want to break into my house, or send me to the penitentiary, to stop me from doing this.’
“The first question that has to be asked—which is never asked—is ‘Why are all these people using drugs?’ ” Adam says. “Before we can even come close to solving the problem, we’ve got to know why the problem is occurring.”
Locallo thinks he knows why the problem is occurring. “Unfortunately, there are individuals in our society who can’t get a high out of life itself, so they seek alternatives,” the judge says. “That’s foreign to me. I’ll have a drink every once in a while. But if somebody told me, ‘For the rest of your life you’ll never have another beer’—so what? Now, if they said I couldn’t have an Italian beef with sweet peppers …”
The judge says he has no idea what might improve things, just that he’s sure legalization wouldn’t: that would just lead to more drug use and, in turn, more birth defects. “The ones that want to take cocaine and heroin and stuff like that, and LSD and PCP—I’m saying, ‘Fine. You want to have that lifestyle? I don’t want to pay for your babies.’ If they want to legally take drugs, sterilize ’em.”
*
At her request, this is a pseudonym.
SEVEN
A Real Lawyer
AMY CAMPANELLI LOVES
criminal defense work, but she’s burned out by the caseload of a courtroom public defender. So early in 1998 the ten-year veteran decides to quit.
Fifty cases would be manageable, she says in her office on a February afternoon, as she packs boxes on her final day at work, but she had more than a hundred. “Nobody can adequately represent that many people. If you’re in court all day doing case after case, you don’t have time to prepare for trials.” So she had to repeatedly ask for continuances. Most of her clients were in the jail, and they wondered why their cases were taking so long. “I’d tell them, ‘Because I’ve got too many cases.’ I
hate
saying that.”
Campanelli says jail inmates represented by PDs have good reason to complain, as they often do, about how seldom their lawyers visit them to discuss their cases. Taped to a wall next to her desk are yellow sheets listing her incarcerated clients and how often she saw them. A few she never visited, and many she visited just once. She often had to rely on a brief talk with her client in the lockup the day the case was in court. She thinks lawyers advocate better for clients with whom they’ve developed a rapport. But PDs rarely have a chance to develop that rapport, she says.
Some PDs keep their head above water by routinely advising their clients to plead guilty, Campanelli says. They skim the police reports and decide, without any investigation, that the case is a loser. “Why would anyone want to be a public defender and work like that?”
Campanelli’s replacement in 302, John Conniff, has been a lawyer for twenty-five years, a PD for eight. He believes a lawyer shouldn’t get personally
invested in his cases. “You should be able to pick up a file and try a case for either side. What’s important is how skillful you are at representing a client in the courtroom.”
Conniff says he’s never felt engulfed by his caseload. He credits this to his knack for quick assessments. If his first review of the police reports and the defendant’s rap sheet convinces him his client’s chances are dim—the usual situation—he’ll advise the client to plead, instead of “hemming and hawing” for several court dates. Clients are often disappointed when he suggests they seek a deal. The TV lawyers the clients are familiar with almost always go to trial.
Conniff acknowledges that his early appraisal of a case isn’t always correct. A case that looks airtight on paper can spring leaks once the state’s witnesses hit the stand and begin contradicting themselves and one another. “When the witnesses start testifying, they often open doors that weren’t apparent from the police reports,” he says. “Anytime you don’t have a trial, the chances of that happening are foreclosed.”
Before the public defender’s office was created here in 1930, indigent defendants had their cases assigned to one of the novice lawyers who hung around the presiding judge’s courtroom looking for work. These lawyers were willing to take such cases for the experience and in the hope that they could eventually wring some money out of the defendant. The judge usually granted the lawyer repeated continuances for that purpose, while the defendant languished in jail.
Officials troubled by this injustice—and by the crowding in the jail—decided to follow the lead of Los Angeles, which had established the nation’s first public defender’s office in 1913.
In a 1934 law review article, Cook County chief criminal court judge Philip Finnegan raved about how cases had been flowing through the courthouse since the public defender’s office had opened. The PDs rarely asked for continuances, Finnegan said, and they frequently accommodated the state by stipulating to facts when witnesses for the state weren’t able to appear. Instead of trying to impress their clients by
“using every legal or quasi-legal resource … in order to win a favorable verdict,” Finnegan said, the PDs spent most of their time trying to persuade clients to plead guilty.
Public defenders made “
a virtue of giving up to the prosecutor without a struggle and pleasing the judge,” charged William Scott Stewart, a prominent Chicago defense lawyer, in a 1936 law review article.
PDs have since earned greater esteem among legal professionals. They can no longer be accused of routinely giving up to prosecutors without a struggle. But defendants at 26th Street, who are represented by public defenders
in 80 percent of the cases, are often cynical about their free
lawyers. PD stands for “Penitentiary Dispenser,” some defendants say. You get what you pay for. They’d have won their cases if they could have afforded “a real lawyer.”
ONE APRIL AFTERNOON
Locallo hears testimony in the bench trial of Terrence Pouncy, charged with residential burglary.
Conniff, who’s representing Pouncy, studied the police reports and advised his twenty-five-year-old client to seek a plea deal. But Pouncy insisted on a trial.
Conniff then counseled Pouncy to request a bench trial and not a jury—a recommendation that had been a no-brainer for Conniff. Tying up a judge’s courtroom with a jury trial in a mere burglary case is ordinarily a flagrant violation of protocol at 26th Street. A private attorney might be able to get away with such an affront, if his client was acquitted by the jury and didn’t have to face sentencing by the judge, and if the lawyer didn’t have another case before the judge in the near future. Not so a public defender anchored to the courtroom, who had to work with the judge every day. The PD might find the judge offering his other clients less favorable plea deals for a time, or issuing stiffer sentences after guilty verdicts, as a punishment for his impropriety. Thus the decision to recommend a bench instead of a jury trial is a pragmatic one, not always in the interests of a particular defendant. But in Locallo’s courtroom, a PD can advocate a bench with no pangs of conscience—for, as Conniff observes in his first weeks in 302, a defendant’s chances in a bench trial here are good. Too many judges in the building try to read between the lines in a case—to the state’s advantage—rather than making their judgment on the evidence that’s presented, according to Conniff. Locallo seems to show a “greater willingness to follow the law of reasonable doubt” than many of his colleagues, Conniff believes.
Pouncy distrusts judges and at first intended to demand a jury trial. But on trips to 302 for pretrial matters, he heard from other defendants in the courtroom bullpen that Locallo is a “law judge,” a judge who follows the law and isn’t biased against defendants. Pouncy, an African American who’s had other cases at 26th Street, had rarely heard positive appraisals from prisoners about any of the judges, and so he agreed to the bench.
All felony trials used to be conducted in front of a jury, in accordance with that Sixth Amendment right. But jury trials are an awful nuisance to those responsible for keeping things moving in a courthouse. Not only does picking the jury sap the court’s time, but the trial itself moves slowly. The judge has to repeatedly instruct the jury on the rules, and the lawyers often must tread a circuitous path in order to avoid exposing the jury to
what’s been deemed inadmissible. (A judge exposed to inadmissible evidence during a bench trial supposedly will simply disregard it.)
In the late nineteenth century the Illinois Supreme Court, like other state high courts, fended off numerous attempts by trial courts to institute bench trials in felony cases. The jury trial was too fundamental a protection to be cast aside when a person’s liberty was at stake, the Illinois high court ruled.
But with felony courts throughout the nation overwhelmed with cases in the 1920s,
reviewing courts and lawmakers decided that the jury trial could be cast aside after all.
Bench trials were approved by the Illinois Supreme Court in 1930. “
Rules of law must struggle for existence in the strong air of practical life,” the court observed (quoting from Sir William Holdsworth’s classic
A History of English Law
). A bench trial could be held only when the defendant waived his right to a jury, the justices said. And judges should ensure that defendants did so “with caution,” the court added, because “the value of trial by jury has been established by long experience and the institution should be safeguarded.”
Once a vehicle as streamlined as the bench trial was green-lighted, however, there was no way that judges were going to keep bumping along in the Model T. And with deft use of the jury trial tax, they made sure they rarely had to. Bench trials in Cook County
outnumbered jury trials by five to one in 1961, eight to one in 1985, and eleven to one in 2003.
The Pouncy trial opens to an empty gallery. The state’s first witness, seventy-three-year-old Washington Demus, is the victim of the burglary Pouncy is charged with. Demus works as a security guard, and he’s come to court in uniform: navy pants, black tie, sweater-vest, and powder-blue shirt with his firm’s patch on a sleeve.
Prosecutor Andrew Dalkin handles the direct examination. Demus tells Locallo he lives with his wife in a house on the 6700 block of South Peoria. On the afternoon of May 5, 1997, he returned home, parked his car in the garage, headed for the back door of his house, and then saw someone on his back steps. The person looked in Demus’s direction and then ran into the house. Demus at first thought it was one of his grandsons and wondered why the grandson would be running from him. Demus then headed into the house. Inside he heard someone say, “He’s here, he’s here,” and then saw someone race out the front door. Then a second person emerged from his wife’s bedroom. Dalkin asks Demus if he sees that second person in the courtroom, and Demus points at Pouncy at the defense table.
The intruder was carrying clothes and fur coats belonging to his wife and daughter, Demus says. Atop the pile Demus saw the rifle he keeps in the bedroom. When the man saw Demus, he backed toward the front door.
Demus tells Locallo it looked to him as if the man were about to drop the clothes and try to shoot him with the rifle. He’s authorized to carry a gun, and he had his .38 on him, so he pulled it and fired a warning shot into the ceiling, he says, hoping the intruder would drop everything and run. But the man just edged out the door, onto the front porch.