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Legal_Novice2016

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  1. To further complicate this thread... The investigator for this case, who has repeatedly been assigned and removed, but not been a factor until now, recently was reassigned. The problem is he is not a disinterested party. The investigator involved is conflicted (he has stated this clearly), having long-time professional associations and friendships with many of the witnesses on both sides of this case. Previously, assigned counsel have even warned to not provide any information to this investigator. But, because these PD's were assigned despite their own conflicts (and not allowed to quit), all they could do was advise their client to not meet with this investigator. Obviously, the PD office was divided. Supervisors and their bosses who had assigned this investigator originally have been conflicted-off, but somehow his presence has lingered. Does a defendant have any recourse on this matter? We know an indigent defendant can't get the counsel of his choosing... but, can a investigator be declared conflicted by the court and removed from the case? Who makes that determination?
  2. Thank you everyone for sharing such good advice. Please remember: The court may be reconsidering it's denial for new counsel. A number of matters have surfaced, i.e. missing discoverable documents, problems with the recent hearing, questions concerning counsels representation, etc. How can it be avoided, that after several years, repeated appointments and withdrawals by counsel, that yet another disinterested and uncommnicative (likely conlicted) public defendant from this overworked office be assigned? Conflict counsel has been repeatedly requested. What can a client cite as justification? Is two-years of delay with multiple reassignments of staff enough?
  3. Update: The last communication with counsel was February 29th, 2016 prior to a supression hearing. As indicated in this thread, counsel sought to withdraw the next day instead of preceeding with the hearing. The court denied his motion to withdraw and counsel has not communicated with his client since. No phonecalls, letters or emails are returned by his attorney. Court is scheduled for this week. What should a defendant say to the court when clearly counsel is uncommunicative and wishes to withdraw?
  4. So, how do you get them to do that if they chooses not to? Or meet with their clients? That's what many posters seem to be complaining about on this site. It doesn't appear that they simply want their hands held, but information and involvement in their cases. Granted, appointed counsel are overworked and underpaid and doing their best...
  5. To clarify: these agencies, legal aid organizations, law schools, and legal pro bono professionals have been contacted over the course of a two-year period. None have offered help, referral or advice. The state of Illinois is going thru a financial and budgetary crisis. So, are it's law schools and charitable organizations as a result. Funds have been allocated but not released. Therefore, many of those contacted have temporarily shut their doors. National groups are slow and must focus on broad appeals for assistance, generally, not individual concerns. Currently, the defendant has not been informed as to whether his counsel will continue to seek withdrawal personally, for his office, or pursue tendering pre-trial motions for his client. Counsel is not speaking to his client or others concerned with his clients defense (family, friends or witnesses on his behalf).
  6. Thank you, for everyone bearing with our questions. You have all been very helpful and it is appreciated. We agree, it is not a Terry stop. Not every encounter between the police and a private citizen results in a seizure. Luedemann, 222 Ill. 2d at 544. "Courts have divided police-citizen encounters into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions, or 'Terry stops,' which must be supported by a reasonable, articulable suspicion of criminal activity; and (3) [consensual] encounters that involve no coercion or detention and thus do not implicate fourth amendment interests." Id. In addition, the "community caretaking function," which refers to a capacity in which the police act when they are performing some task unrelated to the investigation of crime, is distinct from the consensual encounter and can also be invoked to validate a search or seizure as reasonable under the fourth amendment. Id. at 545, 548. The police and state are trying to carve out a hybrid-form of police encounter similiar to a investigative detention, but much longer. They are claiming a little bit of all three of the above examples: that the unarmed defendant walked up to them (consensual), that the stake-out had not been "set up" (arrest) and that the eight police drew their guns for their own protection, and that the Terry stop was "brief", only lasted for hours (which turned into days). It is agreed that there was no probable cause hearing as per Gerstein: a defendant arrested without a warrant has the right to a probable cause hearing as a prerequisite to an extended restraint on liberty. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54, 65. The Supreme Court has held that a judicial determination of probable cause within 48 hours of arrest generally passes constitutional muster. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 63, 111 S.Ct. 1661 1670, 114 L.Ed.2d 49. When a probable cause determination is not made within 48 hours of arrest, the defendant no longer has the burden to show unreasonable delay. The burden shifts to the State to show the existence of an emergency or other extraordinary circumstance. It is hoped that the cell phone records will show and pinpoint a highly coordinated stakeout, where after an unsanctioned arrest, officers are now attempted to put the genie back in the bottle and are claiming a variety of conflicting facts. The probable cause hearing has now commenced more than a year later.
  7. The defendant has appointed counsel and can not afford private. The local and state bar have been notified and as of yet done nothing. Numerous pro bono counsel and regional agencies have been contacted. The Center for Wrongful Convictions (at Northwestern University), the Innocence Project (New York, U of I, NIU and Springfield Campus), ACLU (Chicago and national), other regional law colleges and agencies have all been contacted. Despite the public defenders office seeking to be removed from the case, now for the fourth time, the court has denied each and every request. If you have other suggestions, they would be welcomed.
  8. The cell phone records (logs) will establish time and who the police coordinated the arrest with. In recent testimony, officers testified that it took minutes-to-several hours for police to arrest and transport the prisoner. GPS will establish location, time on the scene and transport time. There was a wide difference in their testimony. In Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, it allows for a brief detention. Many hours, could be argued as not all that "brief". Who the police contacted on their cellphones is also important. The highest ranking officer on the scene was once sued by the prisoner and it could be argued that the arrest was retaliatory and meritless. The subpeonas have come back that the DA has no cell phone records. But, now there is testimony of all the officers involved in the arrest and use of their personal phones at the time. Subpeonas for phone numbers and carrier info can now be obtained. This thread has nothing to do with Hillary Clinton!
  9. 1.) The hearing concluded and the state said they would not be needing the testimony of the offending witness. 2.) The DA danced around whether they knew the witness was in the room. The court did not pressure them for an answer or consider sanctions once the state released the witness. 3.) The role of the witness, was important in other cases where he testified in conducting intake of a prisoner. The witness claimed he recorded the charges against the prisoner, his vital statistics, possessions, fingerprinted and photographed him, and had a conversation. The recording of charges by this witness (and the records) are potentially important. The prisoner went before a judge the next day. Charges were announced. But, now all records of jail intake and that court appearance are missing. It is claimed that it did not happen. The arrest is in dispute and it is being called a "detention" for some other vague investigative purpose. That matter is on-going. To not muddle this thread much more... Can the state now, after announcing they will no longer need this witness, later try to rehabilitate him or is his exclusion permanent?
  10. Is the real reason you've asked this question, because you're wanting to bring a civil action? Are you asking HOW-TO recover these funds without suing?
  11. The hearing recommenced today. The judge was informed. She was disturbed that her explicit order to have all witnesses removed (potential or otherwise) was not followed by the State. The judge tasked them to have an explaination by the next court date, which is Wednesday. This witness was clearly on the State's witness list, testified at past hearings and will likely testify in the future. The court wanted to know how both parties failed to notice this or do their jobs. Thank you for your insights RetiredinVA. It did not turn out to be an "annoying distraction" afterall. What will the court take into account in making it's decisions? If the State claims some form of harmless error will the defense be allowed to counter? Appointed counsel at the time could have cared less, so there is little help there. The judge though was grateful and wanted this explained.
  12. Yes, we have posted a thread on effective communication with counsel: http://boards.answers.findlaw.com/index.php/topic/235598-communication-by-counsel/ Yes, we have sought help from the media (though most here on FindLaw have said to "shut up"): http://boards.answers.findlaw.com/index.php/topic/235607-the-facebook-dilemma/ Yes, the public defenders office has for the fourth time sought to withdraw due to conflicts. Each time the circuit court judge has denied the withdrawal motions (they will not appoint counflict council). Thank you Fallen for your suggestions. Yes, there are "much bigger issues". The hearing that is being discussed just happened. This thread is seeking answers on how to preserve the issue or objection to a State witness sitting in on a hearing where others were excluded and control the damage which may result: with counsel who is notably conflicted. Thanks for your help and suggestions.
  13. This is true. At this time, for this hearing, he is not a witness. It's the future testimony and future hearings that may be in question. The cops are not in agreement on whether an arrest was made. Some officers testified to an unwarranted arrest. Guns were drawn, lights enabled and handcuffs employed. Questioning in a squad car and then taken to the station house. Other officers testfied that guns were not drawn and questioning only centered on identity and custody was only for those investigative purposes. Still other officers testified that it was a mere detention for a limited period and that they were unsure as to whether the defendant was free to go. All items on the defendant were seized: money, wallet, keys to house and car, cell phone and ipod (which contained a large collection of music, photos, documents, softwre and emails). These seized items were not inventoried or listed in a police report. No officer testified to searching or seizing these items. But, all the items seized are used in followup affidavits as some form of justification for other claimed valid searches, warrants and seizures. Where this potential witness fits in is, the booking process, where these items next pop-up, then go "missing". The arrest is likely to get quashed. It is the suppression of the property that is a future issue. Tell the judge and seek to disallow/exclude his testimony?
  14. Remember, appointed counsel has been uncommunicative. He filed a suppression motion without consultation, review or notice. The hearing came, the client was unaware of what would be presented, whether he would testify or what witnesses were subpeoned. At the beginning of the hearing, appointed counsel sought to withdraw. This was the fourth motion by the public defenders office on this issue. He stated that other public defenders in his office may have committed "ethical violations" - including "ex parte communications with a judge". Counsel cites People v. Stovel, 40 Ill.2d 111; 239 N.E.2d 441 (1968), which reads "the right to effective assistance of counsel is a fundemental right and entitles the represented to the undivided loyalty of counsel." The court inquired into these "ethical violations", but counsel would not elaborate, only saying further representation could force the defendants attorneys to choose between it's loyalty to their client and loyalty to their office, co-workers and other judges. The court took a break to consider this. The defendant sought more information from his counsel, but he continues stonewalling and refused to elaborate or clarify if he himself were conflicted. The court, without explaination, denied the motion. The hearing will continue next week.
  15. Thanks for your questions. This hearing is to quash arrest in the state of Illinois. The witness was not the victim, but a court staff member (not an expert) who witnessed the booking procedure and testifyied in past trials against other defendants (they were found not guilt in all their jury trials). The witness could testify as to charges being filed, identification and other vitals. The police have claimed that all records of this arrest are missing or "lost" and that the defendant was only detained pending investigation. With no booking photo, visual ID, time of arrest, and in-take testimony it will come down to this witness to supply these facts and information through their testimony. The witness now has heard what the arresting officers justification for the detention was, police have finally indicated detention times and identification criteria (their reports varied considerably). This will aid in the witness' eventual testimony. I will have to research the exclusionary rules.
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