Cook County Public Defenders Blog

In a well reasoned opinion by Justice McBride,  issued on 2/5/10, a conviction for PCS/W >1 gram <15 grams was reduced to a Class 4 PCS because 1:  The forensic chemist testified that he combined multiple packets to determine weight before testing for the presence of a controlled substance thus giving the Court “no way of knowing whether each packet contained heroin or if only one contained heroin.”  2:  Testimony that the defendant dropped a package containing 13 packets of suspect heroin while fleeing from the police plus the $40.00 recovered from the defendant was insufficient to prove intent to deliver.  Read People v.  Clinton No. 1-08-0720 here.

After the State rested at a DUI trial, the defense made a motion for a directed verdict. The trial court in Will County heard arguments on the motion and found the defendant guilty as charged. The Public Defender remained silent until the motion for a new trail at which time he noted in his written motion that defendant had been denied his right to present a defense and closing argument. The Appellate Court in the Third District grants a new trial at which defendant should be allowed the right to present a defense!  If you don’t believe this you can read People v Jeffrey Faint, No. 08-0618.

The local has obtained a comprehensive summary of new legislation that is now in effect.  Please review the lawupdate2010 so you can become familiar with the new laws.

Jovan Sherrod was stopped in a stolen car and arrested.  At the police station, a custodial search of his person revealed $35 and a plastic bag containing 17 baggies of cocaine weighing 1.8 grams.  A jury convicted defendant of Possession of Controlled Substance with Intent to Deliver.  Our Appellate Court, by Justice Murphy, reversed the intent to deliver element finding insufficient proof of intent to deliver, even in the light most favorable to the State.    Read People v Jovan Sherrod, No. 1-07-0989, 10/7/09.

(B.M. MDD)

In re S.D., No 1-09-0100

Prior to June 1, 2008, section 2-27(l)(d) of the JCA stated that “A minor charged with a criminal offense under the Criminal Code of 1961 or adjudicated delinquent shall not be placed in the custody or committed to the Department of Children and Family Services by any court.”  The language of the statute was amended on June 1, 2008 and added, “…except a minor for whom an independent basis of abuse, neglect or dependency exists.  An independent basis exists when allegations or adjudication of abuse, neglect, or dependency do not arise from the same facts, incident, or circumstances which give rise to a charge or adjudication of delinquency.”

S.D. had recently been returned home after many years in a foster/private guardian home. Living with his mother had not worked out and his mother no longer wanted him in her home.  DCFS appealed the trial court’s decision to place S.D. back into the custody of DCFS after the minor had turned 17 and had been convicted of a criminal offense.  DCFS claimed that no independent basis existed upon which to appoint DCFS as guardian.

Trial court based its decision on the “plain reading of the statute,” and that the amended portion of the statute gave the court wide discretion to do what is in the best interests of S.D.  Judgement affirmed.

(A.F. ,CIV)

People v. Ousley, 9/24/09 -  A trial court must grant a State motion to allow “use immunity” that compels a co-defendant to testify against defendant pursuant to 725 ILCS 5/106-2.5(b).

In this case, the State’s motion stated that if the co-defendant testified inconsistently with his videotaped statement, the State planned to introduce that videotaped statement as substantive evidence against the defendant pursuant to 725 ILCS 5/1115-10.1.  The defendant objected based on procedural and constitutional arguments.  The trial court refused to grant immunity and the Appellate Court affirmed.  The Illinois Supreme Court overturned the lower courts and granted the State’s motion for “use immunity.”

The immunity statute directs that the trial court “shall” order a grant of immunity if the State files such a request.  In an attempt to decide what the word “shall” means, the Illinois Supreme Court engages in a confusing discussion about the “mandatory-directory dichotomy” versus the “mandatory-permissive dichotomy.”  In the end, the Illinois Supreme Court concludes that “shall” is mandatory in this case so that the trial court must approve the request.

The Illinois Supreme Court rejected several procedural arguments by the defendant.  The State’s motion complied with the statute.  The immunity statute does not require the State to make an offer of proof.  Under the immunity statute, co-defendants can be considered witnesses.

The Illinois Supreme Court did not address any constitutional issues.  “To the extent that constitutional issues concerning [the co-defendant’s] testimony remain following the grant of use immunity, the proper time to address those concerns is when those issues actually arise.   Accordingly, we agree with the State that the trial court erred in denying the State’s motion to grant use immunity based upon any potential Bruton and Crawford issues.”