September 1st, 2010
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On August 31, 2010, in the matter of People of the State of Illinois v. K.M., at Branch 29, Belmont & Western, Adam and Barry Sheppard won an acquittal for their client, K.M., a 73 year-old Orthodox Jew who was accused of punching his downstairs neighbor 12-15 times and kicking her. The complainant testified that she went upstairs to knock on K.M.’s door to ask him to turn his television down and to stop playing his acoustic guitar and singing. The complainant was also bothered by creaky floor boards in the defendant’s apartment. On cross-examination, the complainant denied that she was using the judicial process as a means of reprimanding the defendant for the noise disturbances. The complainant was then impeached with a note that she had written four months before the incident in question where she had threatened to call the police based on the noise. Barry Sheppard also cross-examined the complainant about whether she had photographed her injuries, sought medical treatment or informed any of her friends or family of her injuries. The complainant revealed that she did not have any friends in the area. Nor was there any other corroboration of the complainant’s injuries. Sheppard also explored the complainant’s bias against the defendant”s practice of orthodox Judaism or whether there were any issues in the complainant’s social life that resulted in her having a ”displaced embitterment” against men in general.
On direct examination, Adam Sheppard walked K.M. through his version of events. K.M. testified that he was roused from his sleep by loud pounding on the door and that when he opened the door abruptly, the complainant stepped backwards, falling over shoes that had been left in the hallway. K.M. denied ever touching the complainant.
In closing argument, Adam Sheppard emphasized the lack of corroboration of the complainant’s purported injuries, the three week time lag between the filing of the complaint and the date of the alleged offense, and the complainant’s lack of credibility. The trial judge found the defendant “not guilty.”
In the case of People of the State of Illinois v. B.R., at preliminary hearing on June 22nd in Branch 50, the Court found “no probable cause” and the case was dimissed. The allegation was that the defendant, a passenger in another’s vehicle, was responsible for the drugs which were found in the door pocket on the front passenger side of the vehicle. The officer had attributed a statement to the defendant wherein the defendant allegedly admitted ownership of the drugs. On cross-exmination, the officer conceded that he did not see the defendant store the drugs in the vehicle and that he did not know who owned the vehicle. Adam Sheppard further cross-examined the officer about the circumstances under which the defendant made his alleged statement claiming ownership of the drugs. Following cross-examination, the judge found “no probable cause” and the case was dismissed.
In the case of People of the State of Illinois v. F.C. (trial date, May 19, 2010), at the Criminal Courthouse (26th & California), the defendant, charged with multiple counts of Attempt First Degree Murder and Aggravated Discharge of a Firearm, was found not guilty of all charges. The case involved a shooting at a Marathon gas station on 89th and Ashland. Several witnesses identified the defendant as the shooter in a photo array and a line-up following the shooting but when subjected to questioning at trial, two of the witnesses could not identify the defendant as the shooter. The one witness who stayed firm in his identification of the defendant was impeached in multiple respects and could not assign a motive to the defendant. That witness also stated that he was ”not sure” if the defendant was in the initial photo array that he viewed. On cross-examination, that witness conceded that when he viewed the physical line-up, he was identifying the same person whom he saw in the photo array. Another witness who had initially gave a statement to police implicating the defendant recanted that statement at trial.
There was a gas staion video depicting the alleged shooting but the defendant could not be identified as the person on the video. The defense had the video cropped into frame-by-frame photographs and maginfied but the individuals on the video could still not be identified.
In honor of the victory, the defendant, an up-and-coming southside rapper, wrote a song about the trial, which includes a “shout out to my lawyers, the Sheppards…Barry and Adam.” The song is titled, “Free Man,” . . . Here’s the link: http://soundcloud.com/chucth/free-man-by-chucth
In the DUI case of People of the State of Illinois v. S.O. (April 14, 2010), in the Third Municipal District, Rolling Meadows, Sheppard and Associates obtained an acquittal on behalf of their client. The defendant was arrested for DUI after police responded to a rear-end accident where the defendant struck on another vehicle from behind. The defendant submitted to field sobriety tests and the officer testified at trial that she failed “every point on every test.” An open bottle of Smirnoff vodka was also seized from the front passenger seat of the vehicle. Sheppard & Associates impeached the officer from his police report and the officer also conceded that he was testifying largely off his reports as opposed to having an independent recollection of some of the events. The officer further conceded that the defendant’s poor balance could have been attributable to the accident.
The defendant had submitted to a breathalyzer test which disclosed a blood alcohol content of .071. Under the law, no presumption attaches to this breathalyzer result, i.e., the defendant is neither prsumped to be impaired nor sober and the case is to be judged on the totality of the circumstances.
The court ruled that based on the impeachment of the officer, the defendant’s mental acuity at the time of the arrest, and the plausibility that she was “shaken up” from the accident, the evidence was insufficient to prove her guilty beyond a reasonable doubt. The defendant was also found not guilty of Illegal Transportation of Open Alcohol. On cross-examination, the officer conceded that he did not smell the liquid in the Smirnoff vodka bottle, taste the liquid or send it to the Illinois State Crime Lab for testing and analysis. Accordingly, the state could not prove beyond a reasonable doubt that the liquid in the Smirnoff bottle was actually liquor.
In the much publicized case of People of the State of Illinois v. B.S.,pending in the Skokie courthouse (2nd Municipal District), the statutory summary suspension of a school bus driver’s privileges was rescinded. The suspension had been issued on the basis that the drugs, Tramadol and Diphenhydramine, were allegedly detected in the defendant’s urine following his arrest for DUI. Sheppard and Associates filed a Memorandum of Law in Support of a Petition to Rescind arguing that the suspension should be rescinded because the drugs in question were not identified as “controlled substances” under the Illinois Controlled Substances Act. (Section 2-118.1(b) of the Illinois Vehicle Code provides that a summary suspension may be contested on grounds that the person submitted to a chemical test which did not disclose a substance prohibited by the Illinois Controlled Substance Act.). The state argued for an expansive interpretation of the summary suspension statute, submitting that a summary suspension should be justified whenever a driver tests positive for a drug that could have impaired his ability to drive (regardless of whether the drug was a “controlled substance”). Over the state’s strenuous objection, the judge granted Sheppard & Associates’ Petition to Rescind the statutory summary suspension of the bus driver’s driving privileges.
On March 24, 2010 in the Skokie courthouse (2nd Municipal District), in the matter of People of the State of Illinois v. M.R., the judge granted Sheppard & Associates’ Petition to Rescind a three year Statutory Summary Suspension of the defendant’s driving privileges. The suspension was generated based on the defendant’s refusal to submit to chemical testing following her arrest for Driving Under the Influence of prescription drugs. The Notice of Summary Suspension – the law enforcement sworn report that causes the suspension to be issued by the Secretary of State - failed to list the date and time that the chemical test was offered and also failed to identify the officer’s reasonable grounds for the defendant’s arrest. Sheppard and Associates filed a Memorandum of Law in support of the defendant’s Petition to Rescind and presented oral argument on the issue. The thrust of the argument was that the defects in the Notice of Summary Suspension prejudiced the defendant’s ability to contest the grounds for her suspension. The judge agreed and rescinded the three year Statutory Summary Suspension of the defendant’s driving privileges.
On March 17, 2010, in Circuit Court of Cook County, Second Municipal District (Skokie), in the case of the People of the State of Illinois v. K.K., Sheppard & Associates’ Motion to Quash Arrest and Suppress Evidence was granted on behalf of their client. The motion suppressed nine tinfoli packets containing heroin that were seized from the defendant’s vehicle. The officers had stopped the defendant’s vehicle pursuant to an anonymous tip that the defendant’s vehicle (the license plate, color, and make of the vehicle were given) was travelling with two occupants and a rifle in the backseat. At the time of the stop, there was only one occupant in the vehicle (the defendant) and no rifle in the backseat. The arresting officer testified that, as she approached the defendant’s vehicle to conduct a field interview, she observed on the front passenger seat tinfoil packets spilling out of a Marlboro cigarette pack. She testified that she knew tinfoil packets to be a common method for packaging heroin. She searched the vehicle and recovered nine packets of heroin.
Sheppard and Associates argued in their motion that the the anonymous tip was not sufficient to justify the stop because it was not suitably corroborated, it did not predict future behavior of the defendant (e.g., inform officers of what direction the defendant would be traveling in) and that the officers who stopped the defendant did not know what time the anonymous tip came into the police station. The judge granted the Motion to Quash Arrest and Suppress Evidence on these grounds and the state was forced to dismiss the case.
On February 23, 2010, in the Maywood courthouse, in the case of People of the State of Illinos v. J.S.(2009), Sheppard & Associates successfuly employed a novel defense to the charge of Driving Under the Influence of Alcohol. The defense: Chronic Fatigue Syndrome. Through expert testimony, Barry Sheppard adduced that the symptoms of Chronic Fatigue Syndrome – which the defendant had been diagnosed with – simulated several of the symptoms of being under the influence of alcohol…poor cognitive ability, poor balance, extreme drowsiness. The defendant had failed all field sobriety tests and the in-squad video depicted the defendant with poor balance. The defendant had also fled and eluded the officers when they attempted to stop him, resulting in a lenghty police chase. Notwithstanding these facts, based on the expert testimony concerning Chronic Fatigue Syndrome, the court found there to be reasonable doubt as to whether the defendant’s condition was attributable to alcohol consumption or whether he was suffering a bout of Chronic Fatigue Syndrome. For more on “CFS,” see http://en.wikipedia.org/wiki/Chronic_fatigue_syndrome
