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An Inside Look at a Felony Criminal Trial at the Markham Cook County Courthouse

Posted by Steven H. Fagan | Nov 02, 2015 | 0 Comments

Every so often, we're going to take you inside an Illinois criminal courtroom and show you how an actual trial progresses in that Court from a criminal defense lawyer's perspective. The mystique of a criminal trial court is not the defendant's alone - many experienced lawyers are uncomfortable at the thought of even appearing in a trial courtroom. In fact, only a very tiny number of lawyers ever see the inside of a courtroom. Join us for a written walk-through of what a defendant experiences at one Cook County felony Aggravated Criminal Sexual Assault trial. Don't worry, this isn't going to be a discussion of DNA or medical evidence. That's for another time.

The Sixth Municipal District court of Cook County in Markham, Illinois

The Markham Courthouse is the Sixth municipal district court within the Cook county judicial system. The Court hears civil cases as well, but the main business of the day happens in the criminal and DUI courtrooms. One of the felony trial courtrooms on the first floor is where we recently spent a week on trial defending a client accused of over sixty counts of felony Aggravated Criminal Sexual Assault. Given the allegations and state of health of our client, a finding of guilty likely meant he'd be spending the rest of his life in prison, so the stakes were high. The tension could be felt in the air, and fairly radiated off our client. A regular work week for everyone else was a true ordeal for him - he couldn't eat, hadn't slept, and peace of mind was a distant prayer yet to be answered.

Markham Courthouse. Someone Left in a Hurry.

When we arrived for the first day of trial, we weren't really sure what would happen. The weather had been rough overnight, and it was entirely possible there wouldn't be enough people who showed up for jury duty to actually start picking. As a matter of fact, the parking lot wasn't in great shape - massive mounds of snow piled up, limiting the available parking and ensuring a long walk into court. If you don't know, there's no parking garage at the Markham court, just an enormous parking area big enough to house a large football stadium. 

Jury Selection - Voire Dire 

On most days, the felony courtrooms in Markham get started at around 9:30am, and often more like 10am. Defendants are expected to be in the door when the Judge walks in, no matter what time it is. The Judge let us know we should be in the door by 9am. After passing through the metal detectors at the entrance, we were. Court started about 9:30am anyway and got right down to business.

Not our business, mind you. The Court still had normal day-to-day affairs to attend to first before we could even get started.

Every Judge runs things a bit differently, and before bringing jurors in, they'll usually ask the defense attorney and prosecutor to discuss what questions they anticipate in Voir Dire - that's what we call jury selection, and let the lawyers know what rules govern how jury selection will proceed. A little past 11am, the Court had wrapped up the business of the day, and the defendant moved up to sit at counsel table with us. The prosecution team assigned to this particular case took over the prosecutor's table. Having home court advantage, the prosecutor usually chooses the table closest to the jury box, and today was no exception. The potential Jurors were brought in, the Judge let them know what was going to happen, made them promise not to talk about the case, and then sent them off to lunch. There's no cafeteria in the building, so if they didn't live nearby, it was off to local fast food.

"All Rise"

Everyone knows that when a Judge enters or leaves the room, "all rise for the Judge". Similarly, when Jurors enter or leave the courtroom, everyone, even the Judge, stands as well. The Jurors are afforded great respect if nothing else. 

After lunch, we returned to start jury selection, which took the better part of the afternoon. Jury selection starts with the Judge asking some very basic questions meant to explore bias. The truth is that a Judge's efforts, while necessary, are by their nature limited and very superficial. The real exploration begins when the prosecution and defense lawyers get started. That's a problem in Courts that strictly limit questioning by the lawyers, as this Court attempted to. In the end, we managed to learn more and to exclude several jurors. It's important to understand that this is one of those stages where the Defendant himself gets a say, and while it helps to trust your lawyer's judgement, the Defendant can pull their lawyer aside to express a concern. In this case, for example, our client actually noticed something interesting about one of the jurors and felt that the juror might bear a bias against him. After we discussed it, he agreed the bias actually would play to the theme of our case.

While Voir Dire of the jury panel is partly about excluding jurors who may show bias, even though telling the story of the case at this point isn't really allowed, it seeps through to some extent. The Judge takes pains to limit this, but no matter what, it's the first time the eventual Jury will find out what the case is about. 

Criminal Jury Trial Book in assembly

This is a good place to mention that a jury trial is rarely a seat-of-the-pants affair. We'd been preparing for months, to the extent that we prepared a trial notebook. This covered every aspect of the case, from jury selection to opening statements, to planned cross examination of prosecution witnesses and more. In sexual assault cases like this one, that means being ready to cross examine the Sexual Assault Nurse Examiner, the State's DNA expert, as well preparing and organizing material to present our own witnesses, our own DNA expert, and contingency plans in the event certain witnesses changed their tune at the last minute. It happens, and it can be devastating.  Everything was indexed, categorized, labelled, and prepared so that a minimum of flipping around was necessary. If that meant we'd have multiple copies of certain documents peppered strategically throughout the "Trial Book," so be it. Killing a few trees took a backseat to saving our client.

Once the jury was selected, the Judge swore them in, gave a brief explanation of what was going on, let them know this was serious business and swore them to secrecy. Then the Judge let them go for the night and held a pow-wow with the lawyers to schedule the rest of the trial. We had already discussed jury instructions - explanations of the law that would apply to the case. This is the only explanation the Jury would get about the nature of the charges, the law they needed to know, and the standard of proof to be applied - beyond a reasonable doubt.  

Opening Statements

The next morning was scheduled for opening statements. Again, the trial had to wait for regular court business to clear out before starting. Then the Jury was brought in for opening statements. As in all things in a criminal trial, the prosecution goes first, followed by the defense. The opening statement is where the lawyers tell the Jury the facts they believe will be brought out at trial, and which facts deserve special attention. It's like the inside cover of a book explaining that there's more inside. Much more. 

Evidence and Witness Examination

The next part of the trial took days, again, with some late starts after the Court dealt with regular business as quickly as possible.  It begins with the Cook County State's Attorney (in this case a special prosecutor for Sex Crimes) calling their witnesses. This is the part of the trial that they use to make their case. They need to present evidence sufficient to prove the allegations they've made, or the case will be over before the jury gets to even discuss the evidence. They are not allowed to discuss the case until they've heard all the evidence, heard the closing arguments, and have been given instructions by the Judge explaining the law to which they must apply the facts they've learned. More on that later. 

Each witness is called to the stand to testify, and witnesses are generally not allowed to sit and watch the other testimony. The prosecutor explores whatever information they want to get into evidence within limits. Those limits are, in part, set by the bounds of the rules of evidence governing admissibility. In fact, the defense attorney must be aware of what testimony is inadmissible under the law, as well as the way certain questions and answers are phrased, to avoid prejudicing the jury. This is the part when the lawyers jump up and shout "Objection!" Well, maybe not so much jump and shout as simply clearly voice an objection, cite the relevant rule, and wait for the Judge to decide. All the while, the defendant must maintain his composure, or risk the jury taking offense or misinterpreting his body language. To his credit, our client did this well. 

After the prosecutor finishes the "direct examination" of the witness, they sit down, and the defense has the opportunity to cross examine the witness. This, if done right, can contain some of the most entertaining moments of a trial. Consider that jurors have been pulled away from their everyday lives and basically forced to sit for hours and days on end in judgement of their fellow. To be entertained and interested at this point is no small thing, and in fact, may be vital to the success of a defense. It certainly was important in a criminal sexual abuse trial that the Jury be interested in hearing the defense. Just as the defense attorney has the job of objecting when questions or answers are improper, that job now falls to the prosecutor, again with the Judge making the final call. 

The Prosecution Rests

Once the Cook County State's Attorney finished, they announce that they "rest" in their case. That simply means they're done presenting witnesses and evidence. The Judge announced a break and let the Jury out. At this point, a criminal defense attorney will ask the Judge to find the Defendant not guilty right then. The idea is that if the Judge already thinks the State's evidence is weak, it certainly isn't going to get any better going forward, so why waste the Jury's time? In this case we did. And, as in most cases, the Judge denied our motion.

Decision Time   

The Defendant always has a big decision to make at this point - whether to put in a case of his own, and whether to testify. The defense doesn't need to offer evidence at all, and in many cases, it's not necessary or helpful. This relies strongly on the opinion of the lawyer, and in this case, we definitely felt the need to give the jury more information. The Defendant himself has to decide whether he'll testify, and even if we told him not to, he can overrule us. The number one problem with a Defendant testifying is that it's like a lay person off the street getting into an MMA cage with Ronda Rousey or Chuck Liddell. Any felony prosecutor is a pro, and in a major Criminal Sexual Assault case like this one, tends to also have special training and experience that exceeds the norm. The ways they can hurt you that have nothing substantive to do with proof of the case are many. In this case, our client wisely followed our advice and stood mute. It's something that needs to be explained to a jury - after all, wouldn't anyone want to speak in their own defense? But in the end, they seemed to understand that people hire lawyers to do their talking for them.

The Defense

We offered our own witnesses, including an excellent DNA expert. His qualifications and explanation were key in understanding why the DNA wasn't painting the picture the prosecutor tried to paint, and his presentation was clear enough that the Jury didn't need a science degree to understand him. Just like when the State's Attorney called her witnesses and we then had the chance to cross examine each in turn, they had the opportunity to try to poke holes in our witness testimony as well. Once we finished presenting evidence, we announced that the Defense rests, and formally let the Judge know we were done.

Closing Arguments

Closing arguments are just that. Where opening statements tend to be drier and more about the facts, closing arguments can involve allegory, illustration, opinion (to an extent) and cover a larger amount of information. For instance, we included discussions of the legal standard of proof, the opinions and qualifications of the experts, the facts, and also the demeanor of the witnesses. In this case, the medical witness called by the prosecution came off as condescending to the Jury, lacking in professionalism in her examination and showed what is commonly referred to as confirmation bias. She more or less saw what she wanted to see and stopped looking there, despite clear medical standards and common sense that required further investigation. We also talked about the common sense steps in the investigation the police failed to take so obvious that the Detective's failure to pursue it actually elicited an audible gasp from one Juror during the trial.

As in all things in any criminal trial, the Prosecution went first, then the Defense. Once we say down, the Prosecution had the final word - under the law, we don't get to address anything they say at that point, and this was no exception to the rule. 

Giving the Jury the Case

This process had taken days. The Judge would now give the Jury the case. The Judge started by explaining that they had all the evidence, and then reading the jury instructions we all agreed applied to the case. The Jury was then told that for the first time, once they went back into the jury room, they could deliberate, or discuss the case, with each other. They would discuss not just what evidence they heard, but what it meant, and more importantly, what it meant in the law. Now the waiting would begin for the rest of us.

Jury deliberations took days. The Jury sent back a note. The Judge called the lawyers and the Defendant in, discussed the note, and sent it back with an instruction to keep deliberating. The note indicated the Jurors felt they were stuck 8-4. They didn't indicate in what direction, just that they were stuck. In any criminal case, the Jury must return a unanimous verdict in order for there to be a verdict at all. 8-4 or even 11-1 isn't good enough. If the Jurors simply cannot agree, there's a mistrial, and the Prosecution has to decide whether they'll retry the case. While there comes a point where the Judge won't force the jury to continue deliberating if they can't decide unanimously, we hadn't reached that point. Every Judge decides when enough is enough, and this wasn't nearly enough for our Judge. 


Eventually, we got the call we wanted. Well, almost. We were told that the jury had reached a unanimous verdict, but not what that verdict would be - even the Judge didn't know at this point. We piled into the Courtroom after locating our client - he had finally fallen asleep on a nearby friend's couch - to hear the decision. We rose as the Jury shuffled in, not looking at the Defendant, which made us nervous. A jury that won't look you in the eye probably has bad news. The Judge asked the foreman for the verdict forms, which he passed up to the Cook County Deputy Sheriff to give the Judge. The same Cook County Deputy Sheriff that would be taking our client into custody if the Jury had decided against us. 

The Judge read each verdict on each charge one at a time. Not Guilty. Not Guilty. Not Guilty. . . 


The Prosecutor asked that the Judge poll the jury, meaning ask each one to affirm this was their verdict out loud and on the record. They did so one at a time. The Judge thanked the Jury for their service and discharged them. Then the Judge formally let the Defendant know he was discharged and that he was free to leave. 

We went out into the hallway, where hugs were exchanged and tears flowed freely. Our client was a free man for the first time in over five years, and just a little over one year since bringing our firm into the case. As the jury left the building, one Juror walked over to me, shook my hand let me know what had happened in the jury room. "I want you to know, seven or eight of us were convinced he didn't do it. The others didn't think the prosecutor proved their case, but had a hard time saying 'Not Guilty' until the end, when they remembered that was the point - they didn't like it, but the prosecution couldn't prove it, and they had to vote 'Not Guilty' for your client."

It was the same Juror we had almost stricken, but decided to keep.  

About the Author

Steven H. Fagan

Steve Fagan earned his law degree from Chicago-Kent College of Law, is a member of the NCDD, NACDL, ISBA and a founding member of the DUIDLA. He is published and has taught CLE for lawyers on subjects such as sex offenses, DUI and criminal defense, focuses on trial work and Real Estate closings


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