I was leery of this new prosecutor from the start. He reminded me of Beeker from the Muppets. Tall. Blonde hair that stood on end. Thin, long face. Sharp, quick dark brown eyes that didn’t seem to miss much. Dark blue suits. Always dark blue suits and a gold watch.
He was the first chair in the room. We’ll call him Matt. A first chair is the boss-prosecutor in the courtroom. The second and third chair are his underlings. The first chair takes all the big cases; he’s the lead counsel on them. The second chair helps him out, as well as working on his own cases. The third chair assists the second chair in his cases, and handles the little grunt cases that no one gives a shit about, like drug possession or felony traffic or felony battery, that sort of thing.
But Matt was a first chair, the big boss in the room, the one who handled all the cases that had some heat on them, so we had that going for us.
I wasn’t enthused. I didn’t like interacting with Matt much. (Which was good because I never had to say a word around him, and I preferred it that way.)
Like most prosecutors, especially back in my neophyte days (not that I’m some scholar now, but you know what I mean), Matt behaved very dismissively toward me.
I don’t fault most of them for that. When you’re a veteran in the office, or even a mid-level prosecutor like Matt, you’re going to look at a fresh-faced opposing counsel and be like, “Ugh, this kid? I’m not dealing with her. I’ll talk to the old guy with the mustache instead.”
Like, okay, fine, I get that. That’s totally valid.
But some are more professional (ie, courteous) about that than others.
Matt was the new guy on the job, and even though he was familiar with the file, it wasn’t ready to go to trial. He wanted us to take 37 years, or set it for trial.
There were plenty of prosecutors who thought the same thing. (Hell, plenty of them still do!) But when they saw me approach with Raymond, they smiled at me, they offered a handshake, they occasionally glanced at me as they discussed the case with Ray, to make me feel like I was part of the conversation, and they said goodbye to me as I walked out. Some of the nicer ones asked for my card, even though they already had Raymond’s, and even though they probably threw mine in the trash after I left.
Who gives a shit? What I appreciated about those men was that even though they took one look at me and knew I wasn’t worth talking to, they were polite enough. I know that’s stupid, but it mattered to me on a human level.
Plus, I’m not going to lie, there have been many times when prosecutors dismissing me off-hand worked in my favor, and more importantly, my client’s favor. I rather enjoy being underestimated, especially when it helps my people.
But anyway, I wasn’t happy about Matt. Part of that had nothing to do with him personally – I’m sure he was a decent guy. But he was a little too adamant that Morgan was the devil and belonged in jail for the rest of his life. I get real prickly real fast when prosecutors take that attitude with my guy. I mean, at least listen to our pitch, at least try to be a bit reasonable.
This take-my-deal-or-go-fuck-yourself attitude is bullshit.
Matt wanted us to take the 37. We stalled by ordering a Pre-Trial Investigative Report. But the Judge threw us a curveball that I forgot to mention last time: she let us do a PTI report, but only if we set it for trial at the same time.
Her reasoning was pretty good. Usually the PTI is ordered in anticipation of a 402 conference, which is done in anticipation of a plea deal. Oftentimes, when you 402 something, it pleads out and there’s no trial. She wanted us to pick a trial date just in case things went sour, which was actually a wise move on her part. She was just covering all her bases, which made a lot of sense.
But having that trial date there, set for October 29, 2013, or whatever it was, didn’t sit well with me. I had no shortage of confidence in Raymond; he’s been a trial attorney for 40 years and is excellent at it. But again, I was a pretty new attorney. I’d been practicing for 5-6 months by the time we ordered the PTI. I was nervous about my first trial being a big attempt murder with a 40 count indictment or whatever it was. (I know what it was. I’m just playing real fast and loose with the details here.)
PTIs take some time, and we knew we’d get more than 6 weeks out of it. We knew (rather, Raymond knew, and told me) that we’d come back in 6 weeks, Probation would not be ready with the report, and we’d get another 4 weeks out of it. Then we’d come back, and Probation would have the report done, but it wouldn’t be copied yet or whatever. Then we’d get another 4 weeks out of it, maybe, or at least 2.
So the trial date wasn’t firm, because if the PTI wasn’t ready by then it would obviously be kicked.
And that was what happened, basically. The PTI wasn’t ready in time, so the trial couldn’t go forward on October 29, even if we had intended to go to trial on it. So that date was stricken. The judge didn’t give us too much of a hard time on that, but she did yell at Probation for not having it done, and told me I’d have to wait around until the afternoon to pick up the report if they had it done by then.
(I didn’t end up doing that.)
So the October 29 trial was re-set by the judge until December 12 or something. Some Monday in December. Whatever. She was holding our feet to the fire and said we would be going to trial.
Judges like to say that. But just like there’s always a way to get more time during the course of a case, there’s almost always a way to kick a trial date, especially if it’s the first or second time it’s been set. After that, you have to have a good reason, but whatever, shit happens. And whatever happens, we deal with it.
That’s one of the best lessons I’ve learned as a criminal defense attorney: Whatever happens, you deal with it. There’s no point in getting stressed and worked up and panicked about it. Who gives a shit? You just deal with it.
So anyway, we were “going to trial” on December 12. That meant that I had to be really really familiar with the file by that point, and it meant that we had to bring Morgan in for trial prep.
At this point, I was halfway familiar with the file, and still working through it. When I prep for trial, I like to have all the details in my head. I make lists and diagrams and flow charts and I can tell you at the drop of a hat which of the 17 officers involved in the investigation interviewed which witness.
And, of course, I had to have outlines prepared for the direct examination of our client, and cross-examinations of the ten cops or whatever, and the five complaining witnesses that were in the apartment at the time that Morgan and his friend allegedly burst in with their guns blazing.
So I kept plugging away at the file, guided by our senior paralegal, Nicole. Nicole has been with Raymond for many years and is so, so good at her job. She had no problem taking a trial-newbie like me in hand and showing me how to prepare a case for trial. So I worked with her on it, and I worked by myself, and I had a good handle on the forensics and the various statements and all that other stuff.
Except … there were barely any police reports. In the entire file.
This was worrying.
We mentioned it to Ray, and he nodded and then moved on to something else, so that made me feel better, because at least he knew that the file was suspiciously thin on random police reports about things like the chain of custody of Morgan’s clothes, that sort of thing. And I knew that he had probably 8 different strategies cooking regarding that. In the 1.5 years since, I’ve worked with him on things like that, so you know, there’s always a way to play it.
This lack of police reports, and how we resolved the issue, would become very important by the time we set it for trial for the FOURTH time. No, I’m not joking: the fourth trial setting.
Anyway, Morgan began making appointments to come in for trial prep. We worked with him very generally, focusing mostly on developing our theory of defense in a cohesive narrative. Like, we knew what our theory was, but we wanted it blocked out in a good story format.
Raymond has taught me never to script direct examinations. I mean, I still do: my direct exam outlines are easily 6 pages long at the bottom for a good felony case, single spaced, and I cover every possible question we could possibly want to ask. It’s all scripted perfectly. But that’s never how we do it at trial. It’s kind of along the lines of bringing along everything but the kitchen sink, and then using what you need. I script the shit out of direct exams … and at trial we play it pretty loose. Half the outline won’t get used, basically.
But the idea is to do it all, just in case something seems like it’s really going to develop, or if we think we’ll catch an edge by pursuing that line of questioning. And some of it is that we do these practice long-form direct examinations over and over in the office because it gets our client comfortable with the process. We tell them how to sit, how to answer, how to listen, and then we go through it. It’s tiring, because it’s long, but the benefit for the client is that by the time they’ve had 2-3 preps in the office with us, they’re comfortable with the process.
Of course, they know that things will be different at trial, and even when we do dozens of mock-cross-exams they still get nervous about what the State may throw at them, but the preps make a big difference.
Just because we were prepping for trial, though, didn’t mean that we dropped the ball on the negotiations.
Raymond and I had other cases in that same courtroom, before that same judge, so we had plenty of chances to get some face-time with Prosecutor Matt. One such meeting I recall vividly.
It was November. We had a little less than a month left before our trial. Ray winked at me and jerked his head toward the little Prosecutor room in the back corner of the courtroom where the cops hide out as they wait for trials to start that are scheduled that day.
“Let’s have some fun with this boy,” was all he said before he hopped to his feet and led the way. I followed, already uncapping my pen so I could take notes in case Matt blinked and gave something away.
Raymond was excited; this was going to be good.
I’ve told you guys a little about the theory of defense so far. I’ve titled this series of posts on it. I’ll do a retelling of it from the State’s point of view real quick so you’re up to speed.
The way Matt saw this case was pretty straight-forward, and he explained that. Five friends were at an apartment, hanging out. Some were watching TV, some were hanging out in the bedroom, one was in the bathroom.
Out of nowhere, two men burst in, bandanas over their faces, guns drawn. The friends scatter, trying to find safety. The two people in the bedroom lock the door and put their weight against it. One intruder goes to the bedroom door and tries to kick it in. The other intruder grabs one of the girls, holds a gun to her head, and threatens to kill her if the others don’t come out with their money. The girl is released and the intruder that had her now tries to kick in the bathroom door.
One of the men bursts out of the bathroom and scuffles with this intruder. Meanwhile the other intruder has broken into the bedroom and demands money from the two people in there. They give him their money, but it’s barely $20. Frustrated, he makes them strip so he can be sure they’re not hiding any more money. They are not.
Two shots are fired. The man in the living room, struggling with the first intruder, screams. A bullet comes through the wall into the bedroom and hits the man that was in the bedroom, who is now stripped down to his boxers.
This intruder in the bedroom leaves to go help the other one. The woman in the bedroom breaks through a window, in her underwear, to make a break to safety. The intruder that was in the bedroom before hears this noise and looks out the window in the other room. That’s all the time it takes for the man that was in the bedroom to bum-rush him.
Shots are fired. The intruder that was in the bedroom has a bullet wound in his side. He starts to collapse, then makes a break for it and flees. The man that was in the bedroom, who has a gun recovered from the second intruder, sees the first one trying to get at the gun he’s dropped. The man shoots the first intruder, who, due to his injuries, cannot move and stays in the apartment.
The second intruder has made it to the getaway car. He’s losing consciousness and instructs the driver to get him to a hospital. Police arrive on the scene. Both intruders are rushed to a hospital with life-threatening injuries. Two of the residents – both men – have gunshot wounds. One in the arm, one in the butt. They’re flesh wounds, and not serious. The woman who ran through the snow in her underwear to get away has frostbite on her toes. The first intruder is alive but probably won’t walk ever again. The second intruder, who’s gotten shot clear through the torso, almost dies but in about 6 weeks makes a full recovery which is nothing short of miraculous. He’s indicted while he’s in post-op recovery; armed police officers stand guard at his bedside, he’s handcuffed to the bed, and the defense attorney (Raymond) has to get a court order just to be able to deliver his glasses to him.
So that’s how it is from the State’s perspective; that’s what they would and did present in a factual basis to the Court. We disagreed with a lot of that, because the evidence (the discovery, really) just didn’t bear it out. They couldn’t prove half of that, based on the crime scene investigation and the forensic analysis on the guns and the bullets and bullet fragments. So it boiled down to he-said-she-said, and neither the State nor the Defense was willing to blink at the 37.
But we sure were willing to “have a little fun with that boy,” like I said.
We walked into the prosecutor room and shut the door behind us. Matt was there, with two cops that he was prepping for a trial later that day. We didn’t care if they were there or not, so they stayed and fiddled with their papers while they listened (and giggled).
Raymond explained that we had conveyed the offer, while we all waited for the PTI to come back, but we certainly couldn’t recommend it, and our guy wasn’t likely to take it. It was too high, and Matt needed to do something for us. Would he come off the Attempt First Degree Murder to something else? An Aggravated Discharge of a Firearm, perhaps? He had to admit that the Kidnapping charges were absolute bullshit – he had to concede that. So would he be willing to give us a reducer to the AggDischarge? A Home Invasion, maybe? Even with the firearm enhancement, we might be able to work with that.
Matt leaned against the lateral file cabinet and listened patiently during the whole presentation. I have to give him credit, he had a good poker face going on. When Raymond was done (in those days, I didn’t speak at all on this case when we were negotiating, although that would definitely change later on) he blinked a few times and pushed himself away from the file cabinet with his shoulder.
“I can’t do better than the 37.”
We didn’t blink, either. He waited for some sort of reaction, and, not receiving one, pulled out a cut file of loose papers and the 40-something count indictment.
“The 37 is the best I can do,” he repeated, pulling out his calculations. “Even if we did 402 it, I’m not getting off the Attempt Murder. I won’t get approval for that. And our office believes that the 37 is actually a good offer, based on what he’s looking at if we try this.”
I didn’t have it in my head how much Morgan was looking at, at the top end. I had done the calculations, so I had a rough idea – it was a fuckton – but I didn’t have the number in my head. For this discussion, it didn’t particularly matter. It was just the State and the Defense posturing a bit, feeling each other out. We weren’t seriously talking about numbers – yet.
(I mean, it’s not like it had been set for trial or anything. Oops, yes, it had.)
“He’s got the two attempt murders,” Matt was saying, running his finger down a column of charges. “That’s with the gun enhancements. And the kidnappings, and home invasions, all with gun enhancement. Agg unlawful restraint, agg unlawful discharge… No matter what count off the top we proceed on, even if we 402’d it, once she hears the factual basis, she’s not going to give him less than 42 in any case. She’s going to give him much higher, actually. And if we go to trial, they’re mandatory consecutives and she cannot give him less than 42, based on the statute.”
When he said ‘a count off the top,’ Matt was referring to the six or so most serious charges – all of the class X felonies, for which probation is not available and the minimum is 6 years in prison.
When he said “402,” Matt was referring to a conference between the State and the Defense and the Judge where each side presents its case (aggravation, in the form of a factual basis read from police reports, and mitigation, in the form of all the good things about the defendant that the Defense believes should factor into a sentencing decision). The Judge then says what sentence he or she would give if the Defendant pleaded guilty. Both the State and the Defense had to agree to a 402; here, Matt wasn’t willing to, so we couldn’t do it in any case.
When he referred to the ‘mandatory consecutives,’ what Matt meant was referring to Illinois law that states that certain crimes, in certain conditions, have sentences that must be served consecutively. So a defendant could catch a 3 year sentence and a 4 year sentence, to be served CONCURRENTLY, and would serve a total of 4 years, because the 3 and 4 would run together. But if a defendant catches a 3 and 4 spot that run CONSECUTIVELY, he’s spending 7 years in prison.
So Matt was saying that the State would likely proceed on the Class X’s at trial, all of which were mandatory consecutives, and all of which carried a minimum of 6 years, so if the State won on all of them, Morgan would catch 6×7=42. And that’s not including if the State added any of the other 35 counts in the Indictment and won on them.
He was saying this to scare us. It didn’t work. At that point, I was (and probably still am, a little) too stupid to be easily scared. Raymond, on the other side of the coin, was too smart to be scared.
Thank God I’m not lead counsel, basically, is what I’m saying.
He’d also said something about what the Judge “would” do. We generally take that with a grain of salt. Matt had been with this Judge for two months, tops. He didn’t know what she did or didn’t do yet. Everyone was still playing catch up, so his ‘advice’ really wasn’t worth much. Now, if this was a prosecutor we had a long-standing relationship with, one who had been with the Judge for a long time, then we’d take him more seriously. That would occur the following year, but it sure wasn’t the case right now.
Matt then began talking about what Morgan would be looking at if the State proceeded on and won the lesser charges at trial. Spoiler alert: the outlook was not good.
“Yeah, yeah, I know all that,” Raymond interrupted him. “He’s going away for a long time, gotcha. You’ve really impressed me with all of that.”
I love when he gets gruff and sarcastic with younger prosecutors. At this point, the cops are obviously eavesdropping, not even trying to hide the fact that they’re following along.
“But all of that is if you win at trial. On anything.”
Defense attorney euphoria is a beautiful thing, guys. Honestly, I sometimes think it’s our best weapon: we psych ourselves up about a case, and good luck getting us down off that high.
Ray was far from finished. “That’s if your witnesses show up, you know, if they still give a shit.”
Our investigators had already uncovered that the two men who were injured in the gunfight, the complaining witnesses, were, um, involved in certain aspects of street life and were not interested in pursuing this matter, cooperating with law enforcement, and/or testifying. Two of the three ladies had indicated they weren’t interested, either, because one just wanted to move on with her life and the other had found Jesus, who told her to forgive and forget.
“That’s if I don’t fuck ‘em up on cross. That’s if the jury doesn’t see through the fact that you wayyy overcharged this case. That’s if the jury doesn’t see through the fact that the way your cops investigated this matter was sloppy. Those are all big Ifs, my friend.”
Matt didn’t blink. The cops looked kind of bored as they played with their phones.
Raymond waited a few beats, until just before it looked like Matt was about to open his mouth. Then he shifted his weight on his feet, leaning almost imperceptibly closer to me in a watch-watch-this-is-going-to-be-great sign.
“You know my guy shot himself, right?”
Matt’s jaw slackened. He stared. The cops looked up at their phone and stared, first at Raymond and then at me. I smiled back pleasantly.
This was something that we had discovered in our office, the three of us, a while ago. Once we’d gotten the medical records in, our senior paralegal had pored over them. She would then give me packets to read, to bring me up on the important parts, and then she did the same with Raymond.
There were bankers boxes full of medical records from the various hospitals that Morgan went to (and was even air-lifted to) during the intake, ER, surgery, post-op, and treatment stages. And the reports showed that, based on the location of the entry wound, the location of the exit wound, and the size of the wounds, there was no way that he had been shot from a distance. He had been shot from very close, a matter of an inch or two.
Which didn’t match the complaining witness’s story that he had been the one to shoot Morgan.
This was one of the cops, unable to help himself. The other cop was barely holding in his laughter. It made me grit my teeth that they were laughing at something that almost cost Morgan his life, and I know Ray hated it, but that’s the environment that you adapt to when you have to.
“Yeah,” Raymond replied. “He shot himself.”
That moment was a pretty great one. It’s not rare that we get to surprise everyone in the room, and this was a nice little win. Plus, it clued us in to the fact that Matt hadn’t read the medical reports much, if at all. Little tidbits of information like that are important, and are filed away until we can find a way to use them to our advantage. The following year, as I prepared the file for trial, I would assemble a packet of medical reports that I wanted the prosecutor to stipulate to, so they’d be read to the jury, and could go back to the jury room with them. Those medical reports became very, very important.
Raymond illustrated the theory of defense, which we believe was borne out by the discovery. Morgan had been invited in, and hadn’t barged in, but that was beside the point for the immediate discussion. He had been wearing his gun on his hip, like a total newb.
Raymond had his fingers in a gun shape, poised at his left hip bone. (Morgan is left-handed.) “Everyone knows you don’t tuck the gun into your waistband right here,” he was saying as the cops shook their heads and basically giggled. “You snag it on your hip bones when you pull it out!”
I have no clue about guns, and only saw one once at trial when the State left it out on a cart in the middle of the room before trial, but you can bet we shut that shit down REAL quick and made them put it in the back room, out of sight until they intended to introduce it.
But Raymond’s a military man (Navy), so he certainly knows more than enough for the both of us about it. The cops seemed to enjoy his gun talk as it developed further.
Matt wasn’t looking all that pleased, and hadn’t said much since Raymond had explained that Morgan shot himself, where the gun was, and what the surgical notes and various medical reports said.
Raymond smiled almost gently. It was a smile he reserved for State’s Attorneys when he was making a point.
“Think about your offer again a little more,” he said softly, wrinkling his nose. “Talk to your boss. Maybe we can continue this conversation.”
He stepped back and held open the door that led out to the courtroom. I beamed at Matt – it always seems to annoy and/or bewilder the ASAs when I did that – and stepped out, with Raymond right behind me.
He elbowed me as we walked down the hallway. I grinned and said what had been written on his face since we left Matt alone in the back room.