The Life Cycle of a Criminal Case

Episode 7 Transcript

KEVIN ROSENQUIST:
Hello and welcome to Defending the Windy City with experienced attorney David Drwecke. David has committed his career to criminal defense and takes pride in working for those individuals accused of crimes and doing so in a passionate and nonjudgmental way. I am your host, Kevin Rosenquist, and today is going to be part one of our discussion on the lifecycle of a criminal case, how it starts, the steps through the process, et cetera. David, great to see you. Thanks for being here.

DAVID DRWENCKE:
Hey, thanks for having me, Kevin. It's good to be here.

KEVIN ROSENQUIST:
Alright, so do most criminal cases, regardless of the type of charge, follow generally the same lifecycle?

DAVID DRWENCKE:
Absolutely. While there can be little differences from case to case, the general lifecycle from beginning to end, there is a common path to that going from the lower level cases, misdemeanors, to even low-level felonies, up to the most serious things you can think of, there's a typical path in lifecycle for those cases.

KEVIN ROSENQUIST:
Okay. And what is the role of law enforcement in the early stages of the criminal case?

DAVID DRWENCKE:
Sure. Law enforcement, if those are actual police officers on the street or a detective who's actually involved in doing an investigation, that's all on the early stages. It usually is pre-charge because they're building up their case sometimes very fast. If it's a police officer who has witnessed a car blow through a red light, pulls over a vehicle, then finds contraband like drugs or a gun, this is very quick. They've actually witnessed the crime themselves. They're the primary witness. They're arresting somebody for that offense right then and there. In more serious cases where they don't know maybe who's done it, let's talk about a murder case or something like that, or some other serious matters. A detective gets involved and it could be days, weeks, months, maybe even years under the right circumstances where they're building their case, doing the legwork, issuing subpoenas, talking to witnesses, building up their case so that they can then bring charges against somebody who would eventually become a client of mine.

KEVIN ROSENQUIST:
So from the standpoint of law enforcement becoming involved in a criminal case, give us a brief overview of your perspective as a criminal defense attorney.

DAVID DRWENCKE:
Sure. Well, from my point of view, their job, this is the law enforcement detectives and police, and to a certain extent could even be the state's attorney very early on in these stages, is just to do a thorough, honest, open-minded investigation. That if there's been an allegation, somebody has gone to a police station or called 911 and alleged that a crime has been committed, that the police officers and those in law enforcement should go out and do a very thorough investigation to collect every bit of evidence that they can, both good and bad, that leads them to a conclusion. If that is they believe someone, they have that someone, that right person who's committed an offense, and then that person contacts me. I want to be able to go through their work and understand how they got there and what's the strength of their case.

What can be frustrating, this is from my perspective as a defense attorney, is when they don't do that. They don't do an open-minded, thorough investigation. They use blinders, which would be the horse with blinders, that they've been given a suspect, someone has alleged that someone has done something, and that's the only thing they focus on. It's like I want to find evidence that points to John Doe, for the sake of an example. That's frustrating because when I come in after the fact, say, well, I'm trying to recreate the wheel, or there are things that are now gone forever lost to history that may not point to my client. If that's video or witnesses who have gone and moved on and we haven't secured their testimony or their statement, so forth. That's frustrating. So my expectation is that it's open, it's honest. We're just trying to get the facts. Unfortunately, it's not always how it works out in reality.

KEVIN ROSENQUIST:
Yeah, yeah, no doubt. No doubt. And is there any truth to what we see in movies and TV where they're just trying to close cases quickly or is that a little more dramatized?

DAVID DRWENCKE:
You know what, I think there are cases where that is true, where it goes back to the example that I just stated. There's a victim, or at least an alleged victim. They state who's committed this offense, and there can be blinders. Again, I like using that as the focus that anything that points to the alleged culprit, they being law enforcement, very, very interested in. If something might lead to someone else or even, maybe more frustratingly, might point to the fact that this never actually occurred, that this allegation is a lie or an exaggeration, that they cannot focus on that or won't include it or won't fully investigate it. And who's the only person paying a price? Well, ultimately it's my client. They're charged with an offense, they have to hire an attorney, they have to go through the legal process.

So does that happen? Absolutely. Are there other cases where I'm actually compelled, while I'm going through the discovery—that's another word for evidence—where I almost have to give a tip of the cap to law enforcement about how thorough the investigation was? Those cases, painting with a broad brush, are usually when there isn't a suspect, that law enforcement has to uncover every rock. They have to go through every potential lead. They have to use every asset they have and just follow the evidence because they don't know where it might lead. They don't know who their suspect is. It's where I think corners can be cut is when they've been given a suspect and it's like, well, the easiest path from point A to point B is a straight line. Let's not divert from that. Let's not really test any hypothesis about maybe this didn't really happen, maybe it was somebody else. That gets difficult for the defense side.

KEVIN ROSENQUIST:
How do you advise clients who are being investigated but haven't yet been formally charged?

DAVID DRWENCKE:
Sure, it's a scary and anxious time.

KEVIN ROSENQUIST:
I can't imagine.

DAVID DRWENCKE:
Absolutely. And they don't know—it's the unknown that makes it even worse. And that's part of why I think this episode specifically will be hopefully anxiety-lowering to try to demystify some of the—

KEVIN ROSENQUIST:
Reducing, yeah.

DAVID DRWENCKE:
Which is easier said than done, but it's just a thought. Hey, a detective has called me or someone has come to my home. It could be a beat officer, it could be anyone, and they've left their business card saying, call me. I want to talk to you about something. And it can run the range from my client knows exactly what they want to talk to them about to, I have absolutely no idea why they're here. I mean, I can't even guess why they're here. And we as human beings have a tendency of going to a dark place and we can think the worst and that our lives are going to be over. But the advice in those situations is reach out to an attorney because the attorney can be that buffer between yourself and law enforcement, if it's just an officer or if it is an actual detective or a state's attorney, and we can be that buffer and actually start to answer some questions for you, start to learn some details. Not that the detective's going to give away their entire case and tell me everything, but they will share as a professional courtesy, hey, this is what I'm investigating.

I want to talk to your client about X, Y, and Z. Okay, now there's something that we know it's about this, it's about this timeframe, it's about this person, it's about this potential allegation. And then I can advise, typically, painting with a broad brush, but I think it's fair to say, the advice is don't talk to anyone and certainly don't talk to anyone without an attorney. But the advice is take a deep breath, call a criminal defense attorney. Let me be that buffer. Let me start to do some of the investigation myself so that we're ahead of the game or at least on the same page with the state rather than being behind the eight ball.

KEVIN ROSENQUIST:
And having someone in your corner undoubtedly will help too, make you feel a little bit better about your situation. You don't feel like you're going in alone.

DAVID DRWENCKE:
Absolutely. I mean, that is terrifying. It's true for everyone. Even from those small, side-of-the-road type of interaction, I've been pulled over. It certainly happens. And in a split second, my heart starts to pat a little bit too, of course. But then you take a deep breath and I have to take my own advice in those situations is be calm, cool, and collected. Answer what you actually have to answer, be polite, be professional, but also understand what your rights are. And that goes a long way. It's the unknown. The anxiety kicks in. You don't deal with this every day. Hopefully you're not talking to law enforcement every day.

KEVIN ROSENQUIST:
I don't, as a regular old person anyway.

DAVID DRWENCKE:
Absolutely, and I can appreciate that. Fair. I do. Again, I have that anxiety myself when I get pulled over. I've had the FBI calling my phone and then for a split second, I wonder why is the FBI calling? I have to pause and say, because I'm an attorney and my client has a federal case, but the heart races, the mind wanders. And I can appreciate that and knowing that, okay, I have an attorney and that will actually stop a lot of contact as well. As soon as the other side knows that you have an attorney, it is entirely inappropriate, unethical, among other things, for them to continue to contact you when they know you have an attorney. They should then be contacting me or whoever your criminal defense attorney is, they should be contacting me about setting up a meeting. And if they want to have you turn yourself in or wherever you go next, there is a buffer because you have an attorney who does do this all the time and can start to weed out some of the nonsense on the front end to stand between you and the state.

KEVIN ROSENQUIST:
The presumption of innocence in the early stages of a case is obviously significant and is supposed to be there. Can you explain how that tends to work? I mean, I guess we kind of touched on that a little bit with sometimes when police officers might get really focused on one person, but can you explain the significance of presumption of innocence?

DAVID DRWENCKE:
Sure. Well, I think this is one of the things that might be most eye-opening for the layperson if you've never had to go through a criminal case before, you or a loved one have never been charged with something or a suspect, is that on the front end, the presumption of innocence or any kind of presumption in the favor of the defendant is very low. For the state to be able to bring a case, specifically a felony, but this is true in misdemeanor situations as well, is they need to just meet a probable cause standard, which is very low. In layman's terms, could a reasonable person believe that you've either committed a crime or you're in the midst of committing a crime and so forth as it relates to a stop by the police, the search by the police, or to bring charges on the front end of a case?

The state, on felony specifically, has to establish probable cause. They have to bring a defendant before a judge for what's called a preliminary exam. And again, the standard that they're meeting, the burden of proof is probable cause. So these hearings last less than five minutes. Oftentimes there's the arresting officer or somebody who was aiding the arresting officer. They go through a couple of the checkpoints, they identify my client, probable cause is found and the case continues. So it's very low. It's usually very shocking to my clients, that's it? That's all they have to do?

KEVIN ROSENQUIST:
All they needed.

DAVID DRWENCKE:
And that's all on the front end. And that can be frustrating. It doesn't take much, even for the most serious cases. Someone says, you did this. There may not be any DNA, any objective evidence. There may not be video. There may not be anyone else, but someone says you did something. That's all there is. That can be enough for a case to at least exist, begin, and continue on.

Now, as easy as that is on the front end, the system is supposed to be, and the way it's geared is on the backend, supposed to be very pro defendant. That's beyond a reasonable doubt. That's the highest standard that we have in our system. And that burden is on the state. They're the ones who have brought this charge. They've made an allegation. Now they have to prove it and they have to get over that highest hurdle. Technically as a defendant, and on the defense side—and I'll say this during a trial if we get to that point—is to make it perfectly clear to the trier of fact or the jury, listen, I don't actually have to make an opening statement. I don't have to ask a question. I don't have to present any evidence. My client doesn't have to testify. I don't have to give a closing argument. I can sit there silently next to my client if that's what we chose to do. And thus far in my career, we've never chosen that.

KEVIN ROSENQUIST:
Never chosen that.

DAVID DRWENCKE:
But that option exists and this is on the state, and it's all just to prove a point that state, you have the burden. Jury, listen to them. What evidence do they have, and are you satisfied at the end of this that they've met their burden?

So that's to kind of summarize a long answer is front end, very low. And it can be frustrating because between my client and I, this is not strong. And I agree with you, this is not a lot of evidence. It's not nothing, because they—

KEVIN ROSENQUIST:
There's something there.

DAVID DRWENCKE:
But ultimately we may lose that battle on the front end. In fact, the example I give clients is if I've done a thousand preliminary exams, we've lost 999 of them. The probable cause standard is so low, it's so easy that we're not going to win there. But for as often as we lose at the preliminary, or lose, the process continues on. We win an awful lot at trial when the standard goes higher.

The only other note I would add procedurally is that the state does have two options. They can go and do that preliminary exam where it's live, we're in front of the judge, they actually take live testimony. The other option, and this is 100% just the choice of the state's attorney, is in a felony case they can go to a grand jury. My client is not there. I'm not there. It's just the state, their witness, and some folks from the community who will hear this testimony. We do eventually get a copy, a transcript of what is said. Usually, again, not particularly illuminating. We don't learn a lot because it's usually a lot of very leading questions. And even again, in the most serious case, murder charges, that transcript double spaced with a cover page and a signature page might be seven pages long, eight pages long. It's just a number of very leading questions to a detective. Did your investigation discover this? Yes. Did it discover this other fact? Yes, it did. And it's all it is probable cause, true bill indictment, we're continuing on with the case and that's all there was to start the case.

KEVIN ROSENQUIST:
Wow, that's crazy. I didn't realize that it was so low, the presumption of innocence. How does the decision to file charges come about? Who's involved in that process?

DAVID DRWENCKE:
Couple of parties. Again, there's supposed to be, call it a division of labor. They are supposed to be separate. They certainly are on paper. In reality, I feel like they work a little too hand in glove. But it's that the police law enforcement goes through their investigation. They then can present this to the state's attorney. And there's an actual, in Cook County and in Illinois specifically, there's an actual felony review attorney. It's somebody from the state's attorney's office, the prosecuting unit in Cook County, who will review what it is that this detective or the police officer has and say, hey, this isn't enough. And they can reject and say, listen, I'm not going to sign a complaint. I'm not going to approve charges to let this go forward. I mean, I've had that happen. I followed an investigation. I followed a client into the police station. We waited around for a few hours, came back, client's released. State won't sign off. It does happen.

Rare. But it can happen. The more likely, one of two things is a little more likely, is either the state's going to tell them to continue their investigation, and they will, and they're going to come back, they being the police. Law enforcement will come back, or they'll sign off on it, say, yes, I will approve charges for such and such a charge, whatever that is. Again, they're an attorney. They can sign off on what statute they think has been violated or statutes. So it's law enforcement doing an investigation, it's the state's attorney's office, an actual attorney approving those charges, and then we move on to that next stage of let's satisfy either a grand jury or the judge at a preliminary exam or a grand jury in order to get over that very small hurdle to keep the case moving.

KEVIN ROSENQUIST:
And what happens during the arraignment? Is that different than what you were just talking about, and how do you prepare clients for this stage?

DAVID DRWENCKE:
Well, I'll explain just what to expect. Again, arraignment—what is that? Arraignment in the old days was a lot more formal.

In a nutshell, a defendant is being told what they've been charged with and what the state is proceeding with. Now, most of the time, depending on when it is that I've been hired, if I've been hired early in the process, I was probably at the preliminary exam. I know what they've been charged with, so we were there, we were talking about it. But in a formal sense is after a grand jury indictment or a finding of probable cause at a preliminary exam, we have a charging instrument, either a complaint or a true bill of an indictment. They sound scarier. They mean exactly the same thing. If you go to the grand jury or go to a probable cause hearing, a preliminary exam, all the same thing, just different words to get to the same place. The arraignment is where you're told what statutes you violated, how many charges you have, and then oftentimes the potential sentence for all of those as charged.

In the olden days, the judge would actually read this and say the people, the state of Illinois versus John Doe, and they would start to formally read this charging document and say that on or about a certain date, you, Mr. John Doe, violated 720 ILCS—that's the criminal code, Illinois compiled statutes—in that you did such and such a thing on this date or on or about this date, so forth. And you'd read it off. When you have clients who have multiple charges, and by multiple I mean I have clients that may have 150 charges, a judge would have to read every one of those and go page by page by page. That no joke could obviously take an hour or two, if not longer.

So we don't now. We're far less formal part of it. Again, Cook County is so busy. There are so many cases. So what will you actually hear? What will happen, you and your attorney or if you're with me, we'll approach. We'll go before the judge. I'll introduce myself. Judge, as attorney David Drwencke on behalf of the defendant, we're here for an arraignment, your Honor. I'm going to acknowledge receipt of the charging instrument. That oftentimes they'll literally actually hand me a hard copy of it. More often than not, I've already printed it off online because I have access to the docket. But I'll acknowledge receipt of the charging instrument. We will plead not guilty for purposes of arraignment and I'll make an oral motion for discovery.

At that point, the judge goes through some admonishments or just notes, warnings for what's going to happen next in the case. What those are in Illinois specifically, they're just a brief or shortened as the trial in absentia warnings or admonishments where the judge will tell the defendant, hey, you've been charged with these offenses. They sometimes will get into what the range are, that this is a Class X felony, a class 1, 2, 3, 4, so forth, and what that may be punishable by. But most important is say, listen, you need to come to court because if I determine that you've failed to come to court willingly, I can issue a bench warrant during the early stages of a case saying, listen, you didn't come to court, police officers go arrest this individual and bring them back. But if you fail to appear at trial specifically, and again, I determine as the court, as the judge, that you've done it willingly, we can do your trial without you there, meaning you'll waive your right to be next to your attorney and participate in the defense. I can sentence you without you being present, meaning we'll go through the entire process. You're going to come in, you'll waive your right to help your attorney during the sentencing and to speak on your own behalf. You're just going to go into whatever sentence I gave you at that point. So you'll waive all those.

Once those trial in absentia warnings have been given, the judge may also just remind them, hey, you might be on Zoom, you might be in person, you need to continue to come to court. We have a brief discussion about what that next date should be. The arraignment, as long as it took me to maybe explain it, will be done in a minute or two. It will be very, very fast. And it's routine for a client to look at me back in the hallway when we're done and go, that's all we had to do? That's all there was? And it's like, yeah. And brace yourself. That was longer than most of your next court dates. As we go through status conferences, going through the next process following arraignment, it's called discovery, and those are even faster court dates.

KEVIN ROSENQUIST:
Interesting. Well, that's good for you that they've shortened it up. That sounded kind of tedious before.

DAVID DRWENCKE:
It can be. Absolutely.

KEVIN ROSENQUIST:
Yeah. All right, well, thank you for joining us on Defending the Windy City with experienced attorney David Drwencke. That was part one of the lifecycle of a criminal case. We're going to continue that on our next episode. Please be sure to like and subscribe to our channel and leave a review if you enjoyed the show. David, it was so great to have you here. Looking forward to part two.

DAVID DRWENCKE:
Thanks for having me.