Jim Dey: Judges' missteps see drug conviction overturned

Jim Dey: Judges' missteps see drug conviction overturned

Rules are rules, and judges are supposed to know them. Sometimes they don't.

At the same time, appellate court judges often write the rules trial judges must follow, and they are supposed to eschew obfuscation. Sometimes they don't.

That's why 22-year-old Arlandus Jackson has a good reason to give thanks this Thanksgiving.

A state appeals court recently overturned Jackson's conviction and four-year sentence because a trial judge failed to properly follow rules the appellate court didn't clearly write.

The reason the First District Appellate Court unanimously overturned Jackson's conviction is simple — trial Judge Michael McHale violated Jackson's constitutional right to "confront" a witness against him. The reason the judge did so is more complicated than it might seem, demonstrating again why trials are balancing acts, and judges and lawyers must cross the t's and dot the i's when presenting and hearing evidence.

A suspected heroin dealer, Jackson was under police surveillance on April 21, 2013, in a Chicago neighborhood. After a police lookout watched Jackson complete a series of suspected drug sales, the young man was arrested and charged with possession of heroin with the intent to deliver.

Jackson pleaded not guilty, and his lawyer claimed that Jackson was a victim of mistaken identify — that it was some other mysterious guy selling the heroin.

With the identification of Jackson a key issue, the question before McHale, who was hearing the case without a jury, was this: How clearly could the chief prosecution witness, Chicago police Officer John Frano, see what was happening?

Naturally, the defense was curious about where Frano was when he claimed he watched Jackson selling heroin. In other words, what was his specific location and how good — really — was the view?

The prosecution said the defense wasn't entitled to that information, even though the Jackson contended "disclosure was the only means necessary to ensure he could investigate the officer's ability to observe his alleged actions."

It may surprise some people to know prosecutors can, under limited circumstances, withhold from evidence the location of the surveillance site. Evolved from the "informant's privilege," one intended to protect the identity of police informants, the surveillance location privilege is intended to shield secret lookout spots police use from disclosure.

But the privilege cannot be invoked if the state's case is built, as it was in this case, "almost exclusively on the testimony of one surveillance officer."

Nonetheless, the prosecution insisted the information was privileged, and McHale decided to review the matter in camera (in his chambers) with only Frano and the prosecutor present. He barred the defense lawyer from attending.

Although barring the defense from being present may seem egregiously incorrect, the appellate court conceded some of its past decisions on this point have been unclear, that it may have suggested, without actually saying so, the trial judge could bar the defense from being present.

Judge Eileen O'Neill Burke, who was joined in the decision by Judges David Ellis and Margaret McBride, cited one case where the appellate court said such an in camera hearing should occur "out of the presence of defendant and defense counsel" and a second that said "defense counsel should not attend the hearing."

But because defense counsel cannot be present, does that mean the prosecutor can be present?

No, said Burke, even though some cases, "whether implicitly or explicitly, may have given" that impression. Burke said other decisions showed that "either both parties or neither party" should be present during in camera reviews.

Further, the appellate court said, McHale never specifically asked Frano where he was located — specifically — when he claimed to see Jackson make the drug sales, and that was the key issue to be resolved during the in camera session.

Did anyone participating in the trial really know what he was doing on this crucial evidentiary question? The appellate court said no.

It ruled the defense should have been allowed to be present if the prosecution was.

It noted that McHale didn't ask the question necessary to get the information — the location of the surveillance site — that necessitated the in camera hearing.

"In light of these fundamental deficiencies," it overturned Jackson's conviction and issued an admonition in the event the prosecution seeks a retrial.

"If ... the state seeks to invoke the privilege once again, the determination (whether to permit or bar it) must be made by the court after a proper limited in camera hearing outside the presence of both the state and the defense where it ascertains Frano's exact surveillance location," Burke said.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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