Plead "NOT Guilty!"

By J. D. Obenberger, Attorney at Law

© MMI J. D. Obenberger

On a warm August afternoon last week, I defended a young lady in a bench trial arising out of a prostitution sting operation.

The arresting officers had set up in a hotel and had wired the target room with a video-only video surveillance camera. The room contained an open can of beer, a king sized bed, $300 or $400 in United States Currency, and a guy who looked nothing at all like a cop, though that's exactly who he was.

The camera was being monitored in another hotel room. That was the room where Vice kept the beer cooler, the pizza, and detained the escorts after they were arrested, to await transportation to the lockup. The Vice Officers called numerous escort services, and from one of them, my client eventually arrived. (Of course, hers wasn't the only escort service called and she wasn't the only one arrested during the two days that this operation continued.)

Anyway, they had a videotape of the whole shebang. Because Illinois officers need judicial authorization to do audio surveillance, there is no sound on the tape.

But it's quite a videotape, even without sound. As it opens, my client was already in the room. You see her move over to where the phone is, and she apparently made a call just off-camera. The guy goes over and lights a cigarette near her and comes back to the chair. He counts out the money. She comes back and he gives her the money. She starts to undress and he leans over and moves a little table away from his knees so she can come closer, to do her little striptease. There's a big grin on his face, maybe too big, as she takes off her blue jeans and all the rest. Once thoroughly undressed, she turns around and bends down to touch her toes and she wiggles her butt, moves her clothes from the bed, and then moves over to sit on the edge of the king sized bed. The officer gives a signal. A moment later, you see my client react to noise at the door; Startled, she covers herself and begins to look frightened, and then the supporting officers enter the room to effect her arrest.

Pretty grim. At that moment, she must have thought that it was all over except the shouting. But then again, she hadn't consulted with a lawyer yet and didn't know the elements of the offense they would charge her with, the facts the State has to prove to obtain a conviction.

The officer of the law took the stand at trial and testified that she had offered to do him like he had never been done before, for $400, and that he paid her that money. He said she made this offer way early in the conversation and that he waited to give the signal until she had her clothes off so that he'd have "more evidence". He went on to testify that when she bent over to touch her toes, moments after she is seen taking the money on the tape, she invited him to put his thing in her.

So, the prosecutor had evidence of all of the elements of the offense of prostitution from the mouth of the sworn officer, and a corroborating videotape of the young lady taking the money, getting rid of her clothes, and establishing herself on the bed.

By curious coincidence, there was a "court watcher" from the Better Government Association sitting in the court reporter's perch on the judge's bench, a guy who looked like a World War II Vet who handed out copies of bible tracts in his spare time. That's the sort of thing that can work to put additional pressure on a judge, a pressure that probably doesn't work in favor of most criminal defendants most of the time.

So there we were, at trial before the Circuit Court of Cook County. It looked pretty grim, alright. And maybe for a bit, my client may have wondered if she'd done the right thing by turning down the State's offer of six month's supervision in exchange for a plea to prostitution. I started to cross examine the officer, taking him though his story and the tape second by second. During cross examination, I noticed that the Better Government Association guy was starting to smile at me. My client took the stand, admitted that she was working as an escort, and denied offering sex for money.

What do you think happened?

After what seemed like twenty minutes of summarizing the evidence, pointing out the officer's memory lapses and the subtle but very telling contradictions between the tape and the officer's testimony, the judge found that the State had not proved its case beyond reasonable doubt and he found my client "Not Guilty".

This was a very tough case. I suppose that I could write a long column just devoted to how I tried the case, how I reviewed the videotape and used it to my client's advantage, how I examined the officer, and how I argued the case to the judge. But that's not important to what I want really want to convey to you in this article.

The important thing is that my client knew that she was not guilty of the charge which confronted her, that she took steps to secure counsel to investigate the charge and advocate on her behalf, and that, in the end, she had the courage to go to trial, to take the stand and to tell the truth on her own behalf, to risk and to dare, and to face the maximum punishment if she wasn't believed.

"Be bold and mighty powers will come to your aid." (A very wise and very wonderful person promised that to me once, and, having said it, went away. But the wisdom endures forever.)

I haven't checked the court records regarding all of the other women arrested, just a few of the many charged during the two-day operation, but the other files I did check showed that they had all pleaded guilty by taking the State's offer of supervision in exchange for the plea. I don't know whether they consulted with the public defender, the Chicago Bar Association Lawyer placed in the courtroom who usually will handle a plea for the bond money, or some $500 general criminal lawyer. I don't know what these lawyers told the other women or why. Most importantly, I don't know the facts of the other cases, and each case does turn on its own facts.

But I do know that it makes no sense at all to plead guilty, thereby giving up your right to a trial by jury, your right to confront and cross examine the witnesses against you, your right to remain silent, and thereby giving the State a "pass" on its obligation to prove its case against you by legal and competent evidence beyond reasonable doubt, unless there is some significant advantage to you by giving up those things. Even if you know that you are busted cold, guilty as hell, and without any excuse, justification, or defense, you have a right to plead "Not Guilty", to sit silent, to make the State prove its case by evidence, and to take advantage of any mistake it makes and of any shortcoming in its proof. The agents of the law are as human as anyone else is and they do make mistakes. Sometimes critical mistakes. There are a great many people acquitted who never take the stand and who defend by exploiting weaknesses in the State's case. To do so is both legal and moral. If the most likely outcome of losing the trial is a term of supervision, it just doesn't make much sense to give up any real chance of an acquittal in order to take that same supervision.

"Supervision" Under Illinois Law: What they don't tell you when they try to get you to plead guitly.

It is typical in Chicago and Cook County for a first offender to be offered a term of supervision for a plea of guilty to prostitution. It is also typical for a judge to impose a term of supervision if he finds a first offender guilty after a bench trial. (Don't expect the lawyer you meet for the first time in the courtroom to tell you that when he tells you that he got you a "great deal".) Supervision results in a finding of guilty by the court, without the entry of a judgment of conviction.

A disposition of supervision is not a conviction in the technical sense of Illinois law. However, in very many real-world senses, it is just about the same as a conviction. On a practical level, police officers look at prior supervisions in deciding whether to proceed with an arrest and formal charges on borderline cases and prosecutors frequently offer them to the judge as equivalent to convictions in the context of setting bail on new cases and imposing sentences for subsequent offenses. The supervision is fully reported on both court and law enforcement data bases, including City of Chicago Police department rap sheets. Federal judges, applying the Sentencing Guidelines, treat Illinois supervision dispositions just like any other conviction in determining the sentencing range for a federal conviction.

One widespread myth is that the record of the arrest and supervision just go away when the supervision ends. That's just not true. They stay there until and unless you can get them expunged in court. If the term of supervision is successfully completed, the charge is then technically dismissed when the period of supervision ends. But the records of the arrest and supervision stay on the law enforcement and court clerk's records until they are expunged, if ever.

Two years after the supervision is successfully completed, and if and only if the defendant has no convictions for any offense (including municipal ordinance violations but excluding minor traffic offenses and a special first-offender drug probation disposition), the defendant may petition the presiding judge of the Criminal Division for an expungement of the arrest and prosecution records, a process that takes about six to nine months, with filing fees and certified record costs approaching something like $100, and if granted, results in the physical return of police photos and fingerprint cards, the destruction of the records with the Illinois Department of State Police, the sealing of the court file and its deletion from the index of cases available to the general public. (The Illinois Appellate Court says that people who know about your arrest and conviction get to continue using that knowledge in making decisions about you forever. Moreover, the record of your prosecution never gets expunged from microfiche backup records in the Clerk's office or the original court sheets. So a creative investigator can always get confirmation of your experience, expunged or not, if he has facts to start with. So, even supervision can be a forever thing, even if the lawyer you meet for the first time in the courtroom doesn't exactly emphasize that to you as you are persuaded to plead guilty.)

If the offender has convictions on any other offense, including tickets for driving on a suspended license, DUI, or even a City charge of disorderly conduct, the record of arrest and supervision can never be expunged.

If the offender gets in trouble with the law during the term of supervision, the State may file a Petition to Revoke the supervision, and on proof of the new offense by mere preponderance of the evidence (not proof beyond reasonable doubt), the State can transform the old supervision finding of guilty into a judgment of conviction, and have the court resentence the defendant on the original charge. So, If the defendant is arrested again for a prostitution-related offense or any other kind of offense while on supervision, the situation could get seriously worse very quickly: Prostitution is a Class 4 Felony, if the State wants to charge it as such after a first conviction. Nothing in the law would prevent the prosecutor from upgrading the second charge to a felony once he has secured an order vacating the first supervision, entering a conviction, and imposing sentence on the first charge.
The defendant who takes that offer of supervision sets up a situation where she is potentially one arrest away from full room and board in the Illinois Department of Corrections for one to three years.

The Decision on How to Plead - And How to Make That Decision:

Once a person has entered a plea of guilty to a prostitution-related offense, he or she can expect the entire criminal justice system, from the arresting officer to a public defender to the State's Attorney to the sentencing judge to treat them differently in the future than a first offender. It is therefore a very serious decision to take an offer of supervision in exchange for a plea of guilty to any of these offenses, and it should not be make without consultation with a lawyer experienced in the area. Unless you get an advantage by doing so, it is simply stupid to plead guilty. These important rights were purchased for all of us with the blood of patriots, and to treat them casually and trivially is not only reckless indifference to your own well-being, it is a grave disrespect to those who made the ultimate sacrifice so that we might have those rights. It shows the same kind of bad judgment that is likely to have gotten the defendant arrested in the first place. To plead Not Guilty under these circumstances can be a patriotic act. As well as a smart thing to do.

If you plead guilty, the State can't lose.

If you plead Not Guilty, the State incurs some risk that you will prevail no matter how grim the evidence may look before trial. Make sure that if you plead, you secure for yourself something worth having because you surely are giving up something of value: If you plead Not Guilty, you just may prevail despite the fact of your guilt.

I admire the courage and boldness of the defendant I was privileged to defend on that warm Summer afternoon, and I encourage you to consider the wisdom and counsel she followed in her moment of dark personal storm. Be bold. Be smart. Get a lawyer who feels commitment to doing a good job for you.

Don't believe anyone who tells you that pleading guilty and taking supervision is trivial or unimportant. If he talks to you about expungement, look him in the eye and ask him to tell you when you will be holding an order of expungement in your hands and how long it will take to obtain that order. Ask him what happens to you if you get in trouble in the meantime. Ask him just how the cops and the prosecutors and the judges will look at you in the meantime. The odds are that you won't be looking at the order of expungement for nearly three and a half or four years. It will cost you more time and money than you think, and you may never get around to doing it until it is too late to do you any good. You wouldn't be the first.

It makes life easy for a lawyer if you plead guilty and take supervision. But it's not your lawyer's life you should be concerned with. It's your own.

And if you should find yourself ever falsely accused of a matter in which you know your innocence of the facts and circumstances you are charged with performing, do not plead guilty, even should the very gates of hell should confront you. Stand ever defiant of such falsity in the embrace of Truth. No matter who, no matter what entices you to do otherwise.

This article does not constitute legal advice or create any attorney-client relationship, but is written only to generally inform the public. If you are arrested, secure the assistance of an experienced attorney immediately, and until you consult with him, agree to nothing, make no statement, and do not offer resistance.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com and his website is http://www.xxxlaw.net