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Rights of the Accused

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By MICHELLE HOLCENBERG

1 PM. The phone rings. A woman says her boyfriend was just picked up by police on suspicion of battery. As soon as he's been charged and fingerprinted Jim Oakey can get in to see him.

Forty minutes later Oakey's fighting traffic in his worn LeSabre. Police and accused criminals are nothing new for Oakey, a former Cook County public defender, but this is his first station visit as an attorney for First Defense Legal Aid, a two-year-old hot line program.

"When I was a public defender I used to think, 'Christ, wouldn't it be nice to have someone tell these people things at the station?'" he says.

Now that's his job.

As the hot line's full-time attorney, Oakey handles many of the requests that come in for legal advice and, often, for direct representation. The pilot program--the only one of its kind in the country--offers free counsel to suspects during the crucial period between their arrest and the appointment of a public defender. In Cook County that period can last up to 72 hours, until a bond hearing is held.

This is the time when the state begins to build its case. Despite the U.S. Supreme Court's 1966 Miranda decision, which gives every accused person the right to remain silent and to have an attorney present during questioning, the law is not always applied as intended. Hot line attorneys try to ensure that it is.

"It just seemed inherently unfair that people who could afford a lawyer were getting the good advice, but people who couldn't afford a lawyer weren't," said Scott Frankel, a former public defender now in private practice. He's been a hot line volunteer since it was launched in August 1995 under another name, the Police Custody Hotline Program.

Most attorneys will advise clients to invoke their right to silence after giving police their name and address. But many keep talking because they're unaware of their rights or have been misled or coerced--even into confessing to crimes they didn't commit.

"You can't control for the intimidation factor," said Lawrence Marshall, a professor at Northwestern University's law school. Marshall helped free Rolando Cruz from death row last year after Cruz was wrongfully imprisoned for more than a decade, largely because of a coerced statement.

Petra Harris, director of the hot line program, said many suspects, particularly the poor and uneducated, do not understand their rights. Many believe that silence will be seen as an admission of guilt.

"Nothing is supposed to happen to you, but they retaliate like crazy," she said. "I don't want to send the message that all police officers are bad, because they're not. A lot are honest and decent. It's a handful that are causing a problem."

2:10 PM. As police stations go, the dingy brick Area Four headquarters on West Harrison isn't bad. It's clean; but like the plastic chairs in the waiting area it's far from comfortable.

The desk sergeant has no record of the suspect but he's unexpectedly helpful. He suggests Oakey try the violent crimes unit. The guy's there. Oakey's told to wait in the hall until he's ready, which he does after he's assured the suspect's not being questioned.

"We could be here awhile," Oakey says, recalling that Harris was recently made to wait a couple of hours to see her client because the desk sergeant was eating his dinner. These practices, often used so questioning can continue, are illegal, but recourse generally can be taken only after the fact, by filing a complaint with the department's Office of Professional Standards.

But a few minutes later Oakey gets in. The meeting is quick. Oakey introduces himself, counsels the man "to basically keep his mouth shut," answers questions, fills out forms, and provides some human contact.

"They're all scared to death," Harris said of suspects in custody. "I don't care how hardened a criminal they supposedly are. People are grateful to have someone there who's going to treat them like a human being."

Guilty and innocent are not an issue. "It's not our place to decide," Oakey said.

The attorneys gather information about suspects, including date of birth, address, circumstances of arrest, names of witnesses, and details of their physical and emotional condition. The data will be passed on to the client's public defender.

A declaration-of-rights form reminding police that their suspect enjoys the right to remain silent and the right to legal counsel is signed in triplicate by the attorney and the client. The desk sergeant is also asked to sign the form, and then to add his copy to the suspect's file. Sergeants rarely sign, Harris said--in fact, a recent departmental directive told them not to--but they usually do accept a copy of the form, even if it seldom makes it to the case file.

Finally there's a bruise sheet, which Harris put together with the help of the public defender's office. The attorneys make note of any injury the suspects say was inflicted by police.

Today that form goes unmarked. They didn't harass the guy and they treated Oakey nicely--a good sign. "They didn't have a major hard-on for him," Oakey says, apologizing for the analogy. Still, Oakey doubts the police will call him about a lineup that's set for later in the day.

Not all station visits go so smoothly. Harris remembered one guy picked up for possession of a small amount of marijuana. If he hadn't been black, or if he'd had more money, they might have let him go, Harris said. Instead, he was arrested. He told Harris that police held a gun to his head and hit him with a flashlight all the way to the station for refusing to answer their questions. Evidence of the beating was apparent when Harris arrived.

Another time, a young woman with two broken wrists said the injuries occurred when she told police she wanted her attorney and reached for the hot line's business card in her back pocket. The officer slammed her into a wall to prevent her from getting the number.

"As soon as we walk into the station whatever behavior has been going on stops," Harris said.

Episodes such as these convinced criminal defense attorney Charles Hogren that a program was needed to protect suspects' constitutional rights. As executive director of the Cabrini Green Legal Aid Clinic, Hogren often met with clients who had signed confessions, many times through coercion or trickery.

"Sometimes they were told they could go home [if they signed]. Then their home was the county jail."

These confessions were difficult to overturn in court because they had been taken by police officers and state's attorneys, whom judges and juries tend to believe.

"Once I got there shortly after the person was arrested," Hogren said. "He was a young boy, about 16. They had him handcuffed to a hole in the wall and he said he had been beaten. He hadn't signed anything yet."

Hogren left and told police not to question his client until he returned in a few hours. He recalled the police laughing and telling him they would have a signed confession by the time he returned.

"I asked how they could do that when I was his attorney and told them my client was exercising his right to silence."

"Wait and see," he said they responded.

"When I came back he was handcuffed in an obviously uncomfortable position," having to hold one arm up with the other. "That was his penalty for having a lawyer," Hogren said.

Over the next 48 hours Hogren brought his client food and drink and made sure he was comfortable. The boy was able to hold out without signing a confession, and finally the police said he was the wrong person and released him.

"Of course if he had signed the confession he would have been the right person," Hogren said. "After two to three days you'd sign anything."

It became apparent to him that something needed to be done to counteract the coercion and intimidation taking place in some police stations.

"The timeliness of intervention is crucial. Everyone eventually gets an attorney, but...they often get one too late," said David Protess, a journalism professor at Northwestern University who has worked to overturn a number of wrongful convictions. "If you're going to have a truly equally balanced justice system...you have to have defensive prevention at the same time that there's law enforcement prevention."

After conceiving of the hot line program, Hogren had trouble raising the money to launch it. He found an ally in Donald Duster, assistant executive director of Chicago Commons, the human services organization. Duster persuaded United Way of Chicago to grant the funds. "We had to convince the committee that [the program] was worthwhile. We claimed it was economic discrimination. If you have money you can exercise your right [to silence]," Duster said.

United Way had to weather protests from the Fraternal Order of Police, whose members donate to the charity through payroll deductions. Last year, FOP president William Nolan advised officers to discontinue their contributions to United Way, which he denounced for attempting to help people he called rapists and murderers.

Harris points out that only a small percentage of those arrested fit into either category. Besides, she said, "Everybody deserves an attorney whether they're guilty or innocent. Secondly, not everybody who's arrested is actually guilty."

The uproar eventually helped secure funding for the hot line. Its advocates argued that if the police were doing everything by the book, they wouldn't need to be concerned about the program. In Great Britain, a similar program had actually gained the support of police because it cut down on the number of coerced confessions later thrown out of court.

Ultimately United Way gave the program a three-year priority grant: $85,000 in 1994 and $100,000 each of the next two years. And the program received $85,000 from various other organizations.

Nolan no longer openly opposes the hot line, but he isn't a supporter either. "If I lock you up, you have the right to an attorney, but I'm not going to take money out of my pocket to pay for it," he said.

Hogren's idea was finally put into motion in 1994 as a joint project of the Cabrini Green Legal Aid Clinic and Chicago Commons. Harris, a Harvard law school graduate whose life's experiences range from clothing design to private-practice legal work to a position on the late mayor Harold Washington's staff, was hired to create a program essentially from scratch. She drew on her own extensive volunteer experience as well as on the British program.

After a few months she hired Mark Dolce as her assistant director to seek other funding. She says the media's coverage of police brutality can affect the program's ability to raise funds. "They're fickle," Harris said. "Two years from now there will be another hot issue, and [charities] will turn their attention to that. But the challenge for us is to keep this issue at the center of attention."

Hogren hopes that the police will begin not only to accept but to appreciate the program, that it will become part of the public defender system here, and that it will spread throughout the nation.

"It's all free, from the first phone call to the very end," Harris said. "There are no age restrictions and no restrictions on gender or financial need. People say, 'You mean to tell me that some young attorney is gonna get out of bed in the middle of the night and help me?' Yeah, we're gonna do that."

Sometimes the job sends attorneys into some pretty rough neighborhoods. Oakey goes anywhere without a second thought. "Gangs can shoot me or beat me up, but cops can take your freedom," he said. "They're an organized group with the power of government behind them. It's a scary thing. I know [police] have a hard job, but my opinion is that society is pretty scary. We have more jails and fewer rights. We're getting closer to a police state."

3 PM. "Unbelievable," says Oakey as he hangs up the phone. The hot line's based in a blue two-story brick building sandwiched between a liquor store and a vacant lot, just steps from Cabrini-Green. First Defense Legal Aid shares the first floor with the Cabrini Green Legal Aid Clinic.

"He called to tell me they're gonna do a lineup on him and to come on down," Oakey continues.

"You're kidding," Harris replies. They say it's the first time the police have called in advance. "Every once in a while we're amazed by that kind of cooperation."

Perhaps this is a sign that the program's gaining credibility. Serving all 25 police districts, it puts its 65-some volunteer attorneys through intensive training before they begin serving 15-hour on-call shifts once a month. They now handle about 50 calls a month that require an attorney to go to the police station and about 200 more--most of these from friends and relatives--that involve answering questions and tracking down information about where people are being held and why. One or two attorneys leave the program every month, and there's always a need for more volunteers.

"There are stations where people are downright hostile toward us," Harris said, "but for the most part, they may not like us, they may give us dirty looks, they might be rude to us, but...we can do our job."

A couple of detectives wished her luck the other day, and one even called to tell the hot line about a suspect taken into custody. Harris views a recent meeting with police superintendent Matt Rodriguez--after he'd tried for a year and a half to see him--as another step toward improved relations with the department.

"If we can at least get to the point where we're talking [with the police] I feel like that's a big step," she said.

"The community is really thrilled about [the hot line]. Residents, especially those in the housing projects and particularly in minority communities, are thrilled because being harassed by police officers is a way of life for many of them."

Although the number of calls they received was "surprisingly low" at first, awareness of the program is growing, through stickers on el trains and word-of-mouth as well as handouts and workshops at public housing developments. A public service announcement that's to begin running on TV in November and an educational video coming to schools will add to public awareness.

"It's a tremendous service to the public," said Pat Gleason, director of Chicago operations for the overburdened Office of the Cook County Public Defender, which has been making referrals to the hot line. About 500 public defenders handled more than 200,000 cases in 1994, and Gleason said his lawyers felt frustrated that they didn't have the resources or authorization to provide more help. "Now we can just call the hot line and they have a lawyer there within 15 minutes. It's comforting. Fifteen minutes can make a difference."

The mother of one hot line client said First Defense was extremely helpful in finding out information quickly and in getting her son released.

"I hope I never have to [call again]," said the woman. "But I would."

But not everyone is satisfied. "[The hot line] finds its origins in vague accusations of police misconduct," said Nicholas Ford, a Cook County assistant state's attorney. "It is a waste of resources of voluntary legal work. I can't think of a worse one."

Quality of the volunteers is another concern. "Access to representation is always valuable, but while remaining silent is usually the right advice, it could be wrong," said Thomas Fitzgerald, presiding judge of the Cook County criminal courts. Novice attorneys may give bad advice, he said.

It's a great idea," said Northwestern's Protess, "but how well it will work in practice we'll just have to wait and see."

And that's what Harris is doing. The hot line's extensive logs are being studied by Cedric Herring, a sociology professor at the University of Illinois at Chicago, who will chart the program's effect on the speed and costs of the legal system. Since the first cases are just reaching the courts now, Herring expects several months to go by before he comes to any conclusions.

Harris hopes the study will demonstrate that the program works, and she hopes that eventually she'll persuade the Cook County Board to fund it.

5 PM. The suspect is placed in a lineup and is released from custody. Police may pick him up later if they find more evidence, but for now the man is free to go.

The hot line attorneys' efforts are helping to lessen police reliance on confessions and forcing them to go out and do detective work, Protess said. While this could slow down the crime-solving process, that's not necessarily a drawback.

"If you're going to have justice, justice is going to move slowly if it's going to be done right," he said.

Art accompanying story in printed newspaper (not available in this archive): photo/ Cynthia Howe.

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