IPBA Law Update - Winter 2019 Edition
Gamble v. United States, 139 S. Ct. 1960 (2019)Prosecution for the same conduct by different governments is not barred by the Double Jeopardy Clause
The defendant pled guilty to violating Alabama’s felon-in-possession-of-a-firearm statute. Federal prosecutors then indicted him for the same act of possession under federal law. The defendant sought to dismiss the new charges, arguing that the federal indictment violated double jeopardy principles because it alleged “the same offence” for which he had already pled guilty. The United States Supreme Court disagreed. The Court explained that the Double Jeopardy Clause bars multiple prosecutions for the same “offence.” An “offence,” however, is not the same as “conduct.” Importantly, the term “offense” refers to the law broken rather than the act committed. Thus, under the “dual sovereignty” doctrine, if the state and federal governments each have a law prohibiting the same conduct, a defendant may be prosecuted by both governments because he has committed multiple “offences.” This bedrock principle has been understood since the birth of our nation, and the defendant’s argument to the contrary was not enough to overcome stare decisis.
People v. Johnson, 2019 IL 123318The “limited authority” doctrine recognizes that the authority to enter a business open to the public does not extend to those who intend to commit crimes on the premises
The defendant was convicted of burglary after stealing multiple items of clothing from Walmart. He was sentenced as a Class X offender to eight years in prison. The defendant appealed his conviction, relying on the portion of the burglary statute that requires entry “without authority.” According to the defendant, he had authority to enter the store because he arrived during normal business hours and stayed in areas open to the public, and therefore he could not be convicted of burglary. The Illinois Supreme Court rejected this argument. Citing over 100 years of precedent, the court explained that entering a retail store with intent to commit a theft amounts to burglary. Although public establishments grant prospective customers authority to enter, that authority does not extend to those who intend to commit crimes on the premises. The court went on to repudiate the contention that the legislature intended for the retail theft statute to punish shoplifting exclusively, as the legislature could have found that those who enter with intent to steal are more culpable, and thus deserving of harsher punishment.
People v. Buffer, 2019 IL 122327A prison sentence of more than 40 years imposed upon a juvenile offender is a de facto life sentence
In Miller v. Alabama, 567 U.S. 460 (2012), the United States Supreme Court held that the Eighth Amendment prohibits mandatory life sentences for juvenile offenders, reasoning that the compulsory nature of the sentence deprives the trial court of the opportunity to consider mitigating factors related to the offender’s youth. Relying on Miller, the defendant argued that his 50-year sentence for a murder that he committed when he was 16 years old was a de facto life sentence that likewise violated the constitution. The Illinois Supreme Court agreed and created a bright-line standard of 40 years. Specifically, the court held that a prison sentence of more than 40 years is a de facto life sentence because it fails to provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Because the defendant here was sentenced to 50 years in prison, and the trial court did not consider his youth in fashioning his sentence, the supreme court held that his sentence was a de facto life sentence that violated the Eighth Amendment.
People v. Frazier, 2019 IL App (1st) 172250 \An expert witness may not testify about a defendant’s mental state at the time of an offense where the expert did not evaluate the defendant at the time of the offense or soon thereafter
The defendant, a military veteran who served two tours of duty in Iraq, was charged with attempt first degree murder and aggravated discharge of a firearm after he fired several gunshots at a vehicle. The defendant sought to introduce the testimony of several healthcare providers to establish his defense that at the time of the shooting, he was suffering from post-traumatic stress disorder. The trial court granted the State’s motion to restrict the experts’ testimony, holding that the experts could testify about the diagnosis and how it affects behavior, but not about how it affected the defendant’s actions. The Illinois Appellate Court affirmed this ruling. Notably, the issue of the defendant’s state of mind at the time of an offense is a question to be determined by the trier of fact. Although an expert witness may testify as to the ultimate issue in a case, it is not proper for the expert to do so where he was not present to evaluate the defendant at the time of the offense or shortly thereafter. Such an opinion would usurp the role of the trier of fact.
People v. Bass, 2019 IL App (1st) 160640The practice of arresting an individual based solely on an investigative alert violates the Illinois Constitution
The defendant was charged with criminal sexual assault after he allegedly molested the victim while she slept. In investigating the offense, detectives interviewed the victim and her boyfriend two days after the incident. Both individuals gave consistent accounts of what occurred and identified the defendant in a photo array. Based on these interviews, detectives put out an investigative alert for the defendant, which was a communication to all officers in the department that there was probable cause for his arrest. Detectives did not obtain an arrest warrant. Three weeks later, the defendant was arrested pursuant to the investigative alert and made several custodial statements. The defendant was later convicted, but on appeal, the Illinois Appellate Court held that this practice was improper. Acknowledging that the United States Constitution only requires probable cause to be supported by “oath or affirmation,” the court explained that the Illinois Constitution affords its citizens greater protections in that it requires probable cause to be supported by “affidavit.” The investigative alert system, which relies on unsworn evidence presented to police officers, does not satisfy the latter obligation. Accordingly, the appellate court quashed the arrest, found that the trial court’s failure to suppress the defendant’s statements was not harmless, and remanded for a new trial.
If you would like to submit a case for distribution in the next Law Update please email ASA Steven Lupa at slupa2@gmail.com.
EMPLOYMENT OPPORTUNITY click here to download job posting flyer
POSITION: Kankakee County Assistant State’s Attorney
DESCRIPTION: Excellent professional opportunity to become an experienced litigator. Exposure to Traffic and Misdemeanor cases. Conduct bench trials as well as jury trials. Assist with mental health hearings and specialty treatment courts, including but not limited to Veterans Treatment Court and Drug Treatment Court. Other duties as assigned.
REQUIREMENTS: 1-5 years of legal experience. Experience as a prosecutor is a plus. Exceptional communication, research, and writing skills are essential. Must be a licensed attorney within the State of Illinois at time of application. Must be willing to meet county residency requirement within 12 months.
SALARY: Commensurate with experience and abilities. County Benefits include: major medical health insurance, life-insurance, deferred compensation, retirement benefits, paid holiday and vacations.
LOCATION: Kankakee County is located approx. 50 miles south of Chicago and offers affordable housing with a wide range of recreational resources.
DATE OF POSTING: September 19, 2019
DEADLINE TO APPLY: UNTIL POSITION IS FILLED
SEND COVER LETTER, RESUME, COPY OF ARDC CARD, AND 5 PROFESSIONAL REFERENCES TO:
Melody Vilt – Chief of AdministrationKankakee County State’s Attorney’s Office450 E Court Street 3rd FloorKankakee, Il. 60901Fax: (815) 936-5801Mvilt@K3county.net
THE KANKAKEE COUNTY STATE’S ATTORNEY’S OFFICE AND THE
COUNTY OF KANKAKEE ARE EQUAL OPPORTUNITY EMPLOYERS
The Sangamon County State’s Attorney’s Office is seeking qualified candidates for positions in the Civil, Felony, Traffic/Misdemeanor and Juvenile Divisions.
To download more information on the Application process, click here.
Saturday, August 3, 2019 Munroe Park 2617 West 105th Street Chicago, Illinois 60655 1pm to 6pm
All proceeds will benefit families subjected to financial hardship caused by health or life changing events in honor of former Assistant State's Attorney Brian J. Volkman. If you would like to donate your services, products, time or anything else for our event please contact Sissy Lupo at volkmanfoundation@gmail.com for more information. For more information, visit www.volkmanfoundation.com.
The Will County State’s Attorney’s Office is seeking entry level attorneys with zero to 2-years experience to fill open positions in our misdemeanor criminal division. Beginning salary is $54,000. Benefits include participation in the Illinois Municipal Retirement Fund, health insurance, paid holidays, sick and vacation time. Please email resume, cover letter and writing sample to kgrey@willcountyillinois.com
The Illinois Attorney General’s Office and the Illinois State Appellate Prosecutor’s Office are hosting a series of trainings on the trauma-informed, victim-centered approach to prosecuting sexual assault cases. To attend one of these free trainings, please complete this registration form and return to: Eileen Baumstark-Pratt, Special Events Coordinator Fax: 312-814-8344 • Email: mailto:SpecialEvents@atg.state.il.us Call 1-866-376-7215 with questions or to request reasonable accommodations.
The Winnebago County State’s Attorney’s Office is currently seeking attorneys to fill open positions in both our criminal and civil bureaus. Positions include DUI/Traffic, Misdemeanor, felony, juvenile delinquency and abuse & neglect. Entry level positions start at $45,000. Benefits include participation in the Illinois Municipal Retirement Fund, health insurance, paid holidays, sick and vacation accruals. The Winnebago County State’s Attorney’s Office is a great place to get courtroom experience for young/newly licensed attorneys. Please email resume, cover letter and writing sample to statesattorney@wincoil.us.
The Illinois Prosecutors Bar Association serves as the voice for nearly 1,000 front line prosecutors across the State who work tirelessly towards the pursuit of justice. The events of the past few days regarding the Cook County State’s Attorney’s handling of the Jussie Smollett case is not condoned by the IPBA, nor is it representative of the honest ethical work prosecutors provide to the citizens of the State of Illinois on a daily basis.
The manner in which this case was dismissed was abnormal and unfamiliar to those who practice law in criminal courthouses across the State. Prosecutors, defense attorneys, and judges alike do not recognize the arrangement Mr. Smollett received. Even more problematic, the State’s Attorney and her representatives have fundamentally misled the public on the law and circumstances surrounding the dismissal.
The public has the right to know the truth, and we set out to do that here.
When an elected State’s Attorney recuses herself from a prosecution, Illinois law provides that the court shall appoint a special prosecutor. See 55 ILCS 5/3-9008(a-15). Typically, the special prosecutor is a neighboring State’s Attorney, the Attorney General, or the State Appellate Prosecutor. Here, the State’s Attorney kept the case within her office and thus never actually recused herself as a matter of law.
Additionally, the Cook County State’s Attorney’s office falsely informed the public that the uncontested sealing of the criminal court case was “mandatory” under Illinois law. This statement is not accurate. To the extent the case was even eligible for an immediate seal, that action was discretionary, not mandatory, and only upon the proper filing of a petition to seal. See 20 ILCS 2630/5.2(g)(2). For seals not subject to Section 5.2(g)(2), the process employed in this case by the State’s Attorney effectively denied law enforcement agencies of legally required Notice (See 20 ILCS 2630/5.2(d)(4)) and the legal opportunity to object to the sealing of the file (See 20 ILCS 2630/5.2(d)(5)). The State’s Attorney not only declined to fight the sealing of this case in court, but then provided false information to the public regarding it.
The appearance of impropriety here is compounded by the fact that this case was not on the regularly scheduled court call, the public had no reasonable notice or opportunity to view these proceedings, and the dismissal was done abruptly at what has been called an “emergency” hearing. To date, the nature of the purported emergency has not been publicly disclosed. The sealing of a court case immediately following a hearing where there was no reasonable notice or opportunity for the public to attend is a matter of grave public concern and undermines the very foundation of our public court system.
Lastly, the State’s Attorney has claimed this arrangement is “available to all defendants” and “not a new or unusual practice.” There has even been an implication it was done in accordance with a statutory diversion program. These statements are plainly misleading and inaccurate. This action was highly unusual, not a statutory diversion program, and not in accordance with well accepted practices of State’s Attorney initiated diversionary programs. The IPBA supports diversion programs, and recognizes the many benefits they provide to the community, the defendant and to the prosecuting agency. Central to any diversion program, however, is that the defendant must accept responsibility. To be clear here, this simply was not a deferred prosecution.
Prosecutors must be held to the highest standard of legal ethics in the pursuit of justice. The actions of the Cook County State’s Attorney have fallen woefully short of this expectation. Through the repeated misleading and deceptive statements to the public on Illinois law and circumstances surrounding the Smollett dismissal, the State’s Attorney has failed in her most fundamental ethical obligations to the public. The IPBA condemns these actions.
This irregular arrangement was an affront to prosecutors across the State, the Chicago Police Department, victims of hate crimes, and the people of the City of Chicago and Cook County. We strongly encourage our members and the public to review the National District Attorneys Associations statement on prosecutorial best practices in high profile cases.
Best Regards, Lee Roupas President, Illinois Prosecutors Bar Association
Full Statement available
Attorney Team Leader – SVP Unit in the Washington State AGO’s Criminal Justice Division in Seattle.
The Bob Keppel Criminal Justice Division of the Washington State Attorney General's Office has an exciting opportunity in its Seattle office for attorneys interested in supervising a team of attorneys who prosecute the civil commitment of sexually violent predators. The attorney selected for this position will serve as a Trial Team Leader and supervise other attorneys in the Sexually Violent Predator (SVP) Unit of the Criminal Justice Division. The attorney will also handle a lesser caseload of SVP civil commitment cases in addition to supervisory duties. The SVP Unit prosecutes civil commitment cases throughout Washington's 39 counties. We seek an attorney with significant litigation experience to lead and supervise a trial team of 3-4 attorneys who prosecute SVP cases. The selected candidate will report to the SVP Section Chief. The selected candidate will work with other attorneys, paralegals, legal assistants and investigators to successfully prosecute SVP cases. The selected candidate is responsible for managing attorneys under his/her supervision, evaluating attorney performance, assisting/mentoring attorneys in trial preparation, and assisting in the development of training for less-experienced trial attorneys. Work in the SVP Unit is demanding but rewarding. The selected candidate will join a staff of experienced attorneys and professional staff dedicated to safer communities. Requirements include a JD and 5 years of trial experience. Visit posting for additional details, qualifications and application portal at: https://www.governmentjobs.com/careers/washington/jobs/2329661/attorney-team-leader-svp-unit-criminal-justice-division-in-seattle?department[0]=Attorney%20General's%20Office&sort=PositionTitle%7CAscending&pagetype=jobOpportunitiesJobsDeadline to apply is 2/18/19. The WA AGO is an EOE. Persons requiring reasonable accommodation may contact Tracy Robinson at 360-586-7693. The hearing impaired may contact the Washington Relay Service at 1-800-676-3777 or www.washingtonrelay.com.
Trial Attorney – SVP Unit in the Washington State AGO’s Criminal Justice Division in Seattle.
The Bob Keppel Criminal Justice Division of the Washington State Attorney General's Office has an exciting opportunity in its Seattle office for attorneys interested in prosecuting the civil commitment of sexually violent predators under RCW 71.09. The mission of the Criminal Justice Division is to work with and support its partners in the criminal justice community in creating safe communities. The attorney selected for this position will work to provide safer communities by prosecuting sexually violent predator civil commitment cases throughout Washington's 39 counties. SVP caseloads consist of civil commitment and post commitment trial work in the superior courts, as well as appeals that arise from these cases in both state and federal courts. SVP cases are civil in nature. Trial litigation duties include pretrial discovery under the civil rules such as depositions, interrogatories and requests for production. Duties also include litigating SVP cases through all phases of the SVP proceedings, including filing decisions, initial commitment trials (both bench and jury), post commitment proceedings (including bench and jury release trials), and some appeals. Work in the SVP Unit is demanding but rewarding. The selected candidate will join a staff of experienced attorneys and professional staff dedicated to safer communities. Requirements include a JD and 5 years of trial experience. Visit the posting for additional details, qualifications and application portal at https://www.governmentjobs.com/careers/washington/jobs/2329650/trial-attorney-svp-unit-criminal-justice-division-in-seattle?department[0]=Attorney%20General's%20Office&sort=PositionTitle%7CAscending&page=3&pagetype=jobOpportunitiesJobs Deadline to apply is 2/18/19. The WA AGO is an EOE. Persons requiring reasonable accommodation may contact Tracy Robinson at 360-586-7693. The hearing impaired may contact the Washington Relay Service at 1-800-676-3777 or www.washingtonrelay.com.
Prosecuting Attorney – Washington State AGO’s Criminal Justice Division in Seattle
The Bob Keppel Criminal Justice Division of the Washington State Attorney General's Office seeks an attorney with prosecution experience to work in its Criminal Litigation Unit. The work location is downtown Seattle. The selected candidate will represent the State as an assistant attorney general in criminal prosecutions around the state. The Criminal Litigation Unit receives criminal referrals from any of Washington's 39 county prosecuting attorneys or the governor. The Criminal Litigation Unit generally receives criminal cases when the county has a conflict of interest, a case will stretch the resources of a county with limited resources, or the governor deems investigation and prosecution by the Attorney General appropriate in a particular circumstance. The successful candidate for this position is proficient in prosecuting all manner of criminal cases. The selected candidate will handle an assortment of criminal cases that may range from gross misdemeanors to murder. Cases involving public corruption are a focus of the Criminal Litigation Unit, including past prosecutions of public figures such as attorneys, corrections officers, elected officials, police officers, and public employees. Requirements include a JD and a minimum of 3 years of criminal law trial practice. Visit the posting for additional details, qualifications and application portal at: https://www.governmentjobs.com/careers/washington/jobs/2329682/prosecuting-attorney-criminal-justice-division-in-seattle?department[0]=Attorney%20General's%20Office&sort=PositionTitle%7CAscending&page=3&pagetype=jobOpportunitiesJobs Deadline to apply is 2/18/19. The WA AGO is an EOE. Persons requiring reasonable accommodation may contact Tracy Robinson at 360-586-7693. The hearing impaired may contact the Washington Relay Service at 1-800-676-3777 or www.washingtonrelay.com.
The John R. Justice Student Loan Repayment Program provides for the payment of eligible educational loans (both Federal Family Education Loan Program [FFELP] and Federal Direct Loans) for state and federal public defenders and state prosecutors who agree to remain em-ployed as public defenders and prosecutors for at least three years. The annual awards to qualified defenders and prosecutors may be up to $4,000 (dependent on funding), up to an aggregate total of $60,000, to repay their student loan debt. If the employment commitment is not fulfilled, any amount received must be repaid.
Download the full Application here.
Illinois Prosecutors Bar Association | P.O. Box 114 | Wheaton, IL 60187 | illinoispba@gmail.com
