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Exclusionary Consequences. Mary Hutchison, 45, was murdered last week in the Burger King where she worked near Waukegan, Illinois. The man charged with killing her had previously been convicted of a quadruple murder, but he was back on the street because an appellate court held that he was in custody at the time of his statement and that the police did not then have probable cause. Eric Herman and Annie Sweeney of the Chicago Sun-Times report here and here.

Probationary Consequences. Buffalo Police Officer Patricia A. Parete was shot Tuesday by a teenager who was on probation, according to this story in the Buffalo News. "If Parete survives, she likely will be paralyzed from the neck down." Varner Harris Jr., 18, received probation for armed robbery in May, 2005, when he was 17. He shot the officer, he said, because he feared going to adult jail now that he is over 18. He probably does not fear the death penalty for killing a police officer, because the New York Court of Appeals took it upon itself to effectively abolish the death penalty in New York in 2004.

Interesting piece in today's Washington Post by Charles Krauthammer discussing the folly of speculating about the recent murder of a former Russian spy in London. There is also an endorsement of dying declarations.

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As John of Gaunt explained about dying declarations in Richard II, Act II, Scene I:

O, but they say the tongues of dying men
Enforce attention like deep harmony:
Where words are scarce, they are seldom spent in vain,
For they breathe truth that breathe their words in pain.
He that no more must say is listen'd more
Than they whom youth and ease have taught to glose;
More are men's ends mark'd than their lives before:
The setting sun, and music at the close,
As the last taste of sweets, is sweetest last,
Writ in remembrance more than things long past:
Though Richard my life's counsel would not hear,
My death's sad tale may yet undeaf his ear.

The Mary Hutchison and Patricia A. Parete stories are without any doubt tragic and heart breaking. However, we can get this much information from FoxNews, but expect more from a law blog. The question on a law blog might better be framed by asking if it was really solely the judges' fault as implied.

Without reading the opinions and rulings, how do we know the judges' reasoning? In the first case, did the police officers break the law during their investigation? Would better officer training help prevent these tragedies? Or is the suggestion law enforcement need not obey the law? In the second case, did Harris get probation because he turned state's evidence on the robbery? If so, did the state fail to protect him and he knew his life was in danger? These of course would not be excuses for the crimes, but all the information might help with solutions and prevention.

Blaming the judges may or may not be correct, but without all the information we cannot know, and it is unprofessional of a law blog to withhold discovery of relevant evidence.

We can be fairly certain the judges did not release these men in the hope they would murder, so why did they? Without all the information, the news reports are little more than panic. That may help sell newspapers but it does nothing for the respect of law.

Here is the citation:

People v. Ealy
146 Ill.App.3d 557, 497 N.E.2d 101

The issue was whether there was probable cause to arrest and whether or not a person in the defendant's place would reasonably believe he was under arrest. It involves a fact intensive objective testing of a subjective state of mind .

As always, this type of case does not just raise the question of whether or not police officers broke the law. Rather, it also raises the question of whether or not the exclusionary rule is the appropriate response to 4th Amendment violations.

Our News Scan feature points readers to news articles relevant to the topic of this blog that we think may interest them. Sometimes we add a minimal comment, but they are not intended to be in-depth analysis. Extended commentary is reserved for other posts, which are signed by a named individual and limited to a single topic.

We thought these two items would be of interest to readers of the blog (and both were, in fact, brought to our attention by readers) as examples of the real-world consequences of (1) the exclusionary rule, and (2) granting probation for violent crimes.

Neither item is or claims to be an in-depth discussion of all the pros and cons of these rules of law generally or of the decisions in these cases in particular. I do not think it is in any way "unprofessional" to post short items of this type. The beauty of the blogosphere is that the barriers to publishing entry are so low that those who disagree can choose from numerous other blogs or start their own.

Thank you for the cites, ward, it is bound to be worth a read. If only it were online, but the Ill. online opinions only go back 1996. This may be one they would be well advised to add, and publicize having done so. The courts, of course, can't easily enter the debate and defend themselves.

Mr. Scheidegger, another beauty of blogosphere is that if a blog allows comments, it will get them. If you are suggesting I leave and stick to FoxNews, no such luck.

It is clear you are using the articles to argue your own points (1) and (2) and that is why I objected. From the first article:

"But an appellate court threw out his conviction -- and left prosecutors no evidence to try him again."

That sounds nice and neat, open and shut, and I submit that the issue is much more complicated than that. Undoubtedly, Ealy should still be in prison if he committed the early murders, and then undoubtedly Mary Hutchison would still be alive if he committed her murder. The question is if only exclusionary rule is the issue or if there are other factors. These are important matters for the public to consider. For example, what about DNA evidence now? Why not analyze it and refile? Do so may have prevented Mary Hutchison's murder. Another question the public has a right to know is this: if the investigating officers had more carefully followed procedure, could he have been convicted? So rather than the elimination of the exclusionary rule, the debate can also center on proper investigative procedure. Blaming it all on the Court is shallow.

The Innocence Project is overturning many cases because of faulty investigative procedure that lead to false confessions and false convictions. We need better crafted and followed procedure, not less. Since Ealy never got his day in court, we don't know for a fact he was guilty. The solution to these cases is not less careful and less restrictive police procedure, but better police procedure that is aware of the law and doesn't violate it to the extant cases can and will be turned over on appeal. If the police need more money for training, let's give it to them. If they need more personnel, let's give them that. But no matter how much they get or how much manpower they have, the investigative procedure must be professional enough to withstand court scrutiny. That's what checks and balances are all about.

As to the probation for a violent crime, hindsight is always 20/20. As guessed earlier as well, it is possible the State didn't follow through. We don't know what he feared and probably won't until his new trial if there is one. There is likely more to it than the direct cause and effect of probation equals murder.

The opinion in People v. Ealy is available on Westlaw and I have pasted it at the end of this comment.

First, I wanted to note:

This is a reversal after Ealy was convicted. Here it is in its entirety. From reading the opinion, it appears that the exclusionary rule gutted the prosecution case. Ealy's multiple versions of events (not just his confession) coupled with the evidence found in his bedroom and prior relationship with one of the victims indicates guilt. In fact, the court indicates there was sufficient evidence of guilt presented at trial. Later technologies such as DNA would not have mattered, anything that could have been tested would have been subject to the exclusionary rule since all statements and evidence were fruits of the initial unlawful arrest.

It is unclear whether improved investigative training or techniques would have mattered in this case. If the police had not acted as quickly they did in this case, it is quite possible that Ealy would never have been arrested at all. I don't think this is an example of where faulty police work caused the conviction of an innocent person. This is a typical example of the exclusionary rule acting to exclude evidence of guilt. Mary Hutchison later paid the price.

The opinion follows:

Justice MURRAY delivered the opinion of the court:
Following a jury trial, defendant James Ealy was found guilty of four counts of murder (Ill.Rev.Stat.1983, ch. 38, par. 9-1) and sentenced to natural life imprisonment in the Illinois Department of Corrections, the sentence to be served consecutively with a previously imposed 23-year sentence on a conviction for rape. On appeal, defendant**102 ***222 argues that: (1) based on the ground that his arrest was illegal, the trial court erred in denying his motions to suppress his confession and evidence obtained as a result of two searches of his residence; (2) the State's failure to produce photographs and a microanalyst's notes during discovery violated his right to due process; and (3) the prosecutor's improper remarks during closing rebuttal argument constituted reversible error. For the reasons set forth below, we reverse and remand.

The record reveals that at the hearing on defendant's motion to suppress, the following testimony was presented. On August 16, 1982, at approximately 12:55 p.m., Chicago Police Officer Dennis Vavrin discovered the bodies of Christine, Mary Ann, Cora and Jontae Parker in their seventh floor apartment located in the Rockwell Gardens housing project at 2515 West Jackson, Chicago, Illinois. Christine, the 33-year-old *559 mother of 15-year-old Mary Ann and 13-year-old Cora, was found in a bedroom of the apartment. Mary Ann and her 3-year-old son, Jontae, were discovered in the bathroom. Cora was found in a closet, next to the bathroom. All of the victims bore ligature marks around their necks, with the exception of Mary Ann who was discovered with a green cloth wrapped around her neck. A later examination of the premises by police evidence technicians revealed no fingerprints suitable for comparison. Dr. Robert Stein, the Cook County medical examiner who had been called to the scene, pronounced the victims dead and their bodies were removed from the apartment.

Shortly thereafter the police conducted a canvas of the building residents. Police officers went to defendant's mother's apartment located on the fourth floor and questioned her. Defendant, who was 17 years old, was present at that time but was not questioned. Later that afternoon, the police returned to Mrs. Ealy's apartment and spoke with defendant who told them that he had dated Mary Ann Parker until earlier that year, he knew the other Parkers and that he did not know anyone who might have killed them. At approximately 11 p.m., several police officers reappeared at the apartment asking to see defendant and, finding he was not at home, told Mrs. Ealy to have him call them if he had any more information regarding the Parker homicides.

The next day, August 17, autopsies were performed on the victims by Dr. Stein. In attendance was Detective Thomas Blomstrand of the Chicago police department. Dr. Stein's examination disclosed that each victim had died as a result of ligature strangulation. His examination of Mary Ann revealed that the green cloth around her neck was a leg portion of a pair of green surgical pants. After removing the cloth from Mary Ann's neck, Dr. Stein also discovered a piece of tan material knotted on the right side and tied tightly around her neck. His examination of Jontae further revealed that he had been raped.

Thereafter, Detective Blomstrand reported to Area 4 police headquarters and communicated Dr. Stein's findings to other detectives present at a 5 p.m. roll call. Detectives Terrence Thedford and Patrick Harrington were among those in attendance. They were assigned to interview two of five individuals, one of whom was defendant, who were known to frequently watch television in the victims' apartment. Thedford and Harrington arrived at defendant's residence, without a warrant, allegedly at 9 p.m. They identified themselves to Mrs. Ealy, stated they were working on the Parker homicides and asked to speak with defendant. Mrs. Ealy invited them in and sent *560 her younger son to get defendant who was outside on the playground area of the building. When defendant arrived, the detectives asked him if he would come to the police station with them. Both detectives testified that they did not tell defendant that he had to go with them and defendant never indicated that he did not want to go with them. On direct examination of defendant, defense counsel orally made an offer of proof that defendant would testify that “he felt they [the detectives] would force him to go if he didn't cooperate” and ***223 **103 “that one of the officers was standing by the door, blocking the door from his exit.”

They then left the apartment-one detective in front of and one in back of defendant. Defendant was not handcuffed and the officers “did not pull their guns on him.” He was transported to the police station in a squad car which was equipped with a wire screen between the front and rear seats and which lacked handles to the windows and doors in the rear.

Upon arriving at the Area 4 station at approximately 9:40 p.m., the detectives placed defendant in a second floor interview room, but did not give him Miranda warnings at that time. The room was windowless and contained a table and three chairs. The officers left defendant in the room for 20 minutes, then returned and interrogated him for 30 minutes, asking him to account for his whereabouts during the early morning hours of August 16. Determining that some discrepancies existed between defendant's account of his activities and the one previously given by his mother, the detectives left the room to discuss the inconsistencies. While out of the room, they became aware of the presence of Mrs. Ealy and told her about the inconsistencies between defendant's and her account of defendant's whereabouts on August 16. Contrary to Mrs. Ealy's testimony, they then asked Mrs. Ealy if she would speak to defendant about his story and she agreed. Contrary to defendant's testimony, they further testified that they asked defendant if he would speak with his mother and that he refused to do so.

Shortly thereafter, Thedford and Harrington were informed by another detective that defendant recently had been arrested for a rape which occurred in the same building where defendant and the Parker family lived. After reviewing the case report of that rape, Thedford and Harrington returned to the interview room at approximately 11 p.m. and gave defendant Miranda warnings. Defendant said he understood his rights and the officers interrogated him for another 30 minutes. During that time, defendant was asked and agreed to sign a consent to search his bedroom. The detectives did not seek *561 to obtain a search warrant. The officers also testified, contrary to Mrs. Ealy's testimony, that she had agreed to sign a consent to search form.

The next shift of detectives, Ralph Vucko and Victor Switski, were informed by Thedford and Harrington of the status of the investigation. Detective Vucko testified he prepared a consent to search form for Mrs. Ealy's signature. At approximately 1:30 p.m. on August 18, after finding that Mrs. Ealy had left the station, Vucko and Harrington took the form into the interview room. Vucko stated he asked defendant to sign the consent form after reading its contents to him and advising him that he was waiving “his right to the police having to have a search warrant to look in [his] house.” Defendant, however, testified that although he signed the form, its contents were not read to him and he did not read it.

At approximately 1:45 a.m., Detectives Vucko and Switski arrived at defendant's residence. They testified they showed Mrs. Ealy the consent to search form signed by defendant, she permitted them to enter the apartment, and she showed them to defendant's bedroom. Mrs. Ealy, however, testified that the detectives asked her to sign a consent form, she asked them if it was a search warrant, they said no, and she said she would not sign it. She stated that they then pushed her aside, entered the apartment and went into defendant's bedroom. The detectives subsequently found a “bundle” underneath defendant's bed. It contained numerous items, including two lengths of khaki-type material, one of which was knotted at each end and the other with one knot in it. Other items found in the bundle were a bone-colored knife handle, a green pair of surgical pants, some bed sheets with red stains, a child's sweater, and a red sock. Vucko took the khaki material and some shoelaces he had found in defendant's dresser.

The detectives then left the apartment and went to Detective Blomstrand's home. They showed him the khaki material taken **104 ***224 from the bundle and he told them it looked like the same material he had observed around Mary Ann Parker's neck at the autopsies he attended. Vucko and Switski then returned to the Parkers' apartment. Vucko discovered a khaki-colored trench coat in a closet and noticed that although the coat had belt loops, the belt was missing. He also found a knife blade in the closet which appeared to him to match the handle he had seen in the bundle in defendant's bedroom. Vucko took both items and he and Switski returned to the police station, arriving at approximately 4 a.m. on August 18. At that time, Switski testified that he went to the interview room occupied by defendant and locked *562 the door.

At approximately 5 a.m., Vucko and Switski entered the interview room. Detective Thedford also entered, “took defendant's underwear and gym shoes” away from him and then left. Defendant was again given his Miranda rights, he indicated he was willing to further discuss the Parker homicides, and the officers confronted him with the items they had recovered from his bedroom and the Parker crime scene. Thereafter, defendant told the officers that on August 15, at about 11:30 p.m., he was near the Parkers' apartment and saw a large black man running from the apartment carrying a large bundle which he dropped. After picking up the bundle, defendant went into the Parkers' apartment and found the victims' bodies. He said he then left the apartment, taking the bundle with him to his mother's apartment, placed the bundle under his mother's bed and went to sleep. Defendant, however, later denied giving this account to Detectives Vucko and Switski. Defendant also denied that he signed a second consent to search form at the end of this interrogation session, even though he later acknowledged his signature on the form which was admitted into evidence.

At approximately 6 a.m., Detectives Vucko and Switski went to defendant's residence bearing the second consent form. They testified that they showed Mrs. Ealy the consent form and told her that they were there to pick up the rest of the items which were left in the bundle. Contrary to Mrs. Ealy's testimony, Vucko and Switski stated that she permitted them to enter the apartment and to take the items. Mrs. Ealy testified that the detectives shoved her, entered her apartment and went into defendant's bedroom. Finding that the bundle had been removed from its previous location, they told Mrs. Ealy to bring it to them, she did so, and they left.

Vucko and Switski returned to the Area 4 station with the bundle and interviewed defendant again at approximately 9:30 a.m. on August 18. Switski gave defendant Miranda warnings and Detective Vucko then told defendant that his previous story did not make sense. At that point, defendant became excited, started crying and said he “would tell the truth.” Vucko and Switski stated that defendant then told them that on August 15 he had been drinking with friends. He later went to the Parkers' apartment at approximately 11:30 p.m. and several members of the Parker family “made fun of his red eyes.” Defendant then described to the detectives how he strangled the four victims.

Thereafter, Detective Switski called the State's Attorney's Office, and assistant State's Attorney Christine Campbell arrived at Area 4 *563 at 10:45 a.m. After explaining her position to defendant and giving him Miranda warnings, defendant repeated his confession to her and agreed to make a written statement. At 1 p.m., defendant signed a waiver of his constitutional rights, his statement was taken down by a court reporter and at approximately 2:30 p.m. he signed the statement. At 3 p.m., defendant was allowed to see his mother. She had arrived at the station at approximately 10 a.m. and had been told she had to wait before seeing defendant. During that time, Mrs. Ealy called Beverly Bearden, a case worker volunteer for Catholic Charities, who arrived at the station at 2:30 p.m. and was also told she would have to wait to speak to defendant.

Defendant testified that when he spoke with his mother and Bearden, he told them **105 ***225 he confessed because he “couldn't take it” any more. He stated that he had not had anything to eat or drink throughout his detention, that the officers would not permit him to sleep and that they would not let him leave. Defendant further stated that he had been repeatedly “punched in the ribs” by an unidentified officer and threatened that he would not be able to sleep or to see his mother until he signed a confession. He also stated that he in fact did not kill the Parkers, that he had been high on wine when he found a bundle by the garbage chute on the seventh floor where the Parker apartment was located, that he had used the bundle as a basketball, tossing it into garbage cans as he made his way down to his mother's apartment on the fourth floor, and that he went home to sleep when he reached his mother's apartment, tossing the bundle on the floor of his bedroom.

At the conclusion of the evidence, the trial court denied the motions to suppress defendant's confession and evidence obtained as a result of the two searches. The court also subsequently denied defendant's motion to exclude the photographs and microanalyst's notes pertaining to the evidence obtained from the searches, but advised defense counsel that he could again raise his objection to this evidence at trial.

At trial, the witnesses' testimony was virtually the same as their testimony at the suppression hearing. Defendant, however, did not testify. In addition, when defense counsel again raised his objection to admission of the photographs and the microanalyst's notes, the motion was denied. Defendant's motion for a mistrial, citing alleged prejudicial and inflammatory statements made by the State in closing rebuttal argument, was also denied, as was his post-trial motion.

On appeal, defendant contends that the trial court erred in denying his motions to suppress his confession and the evidence obtained *564 as a result of the two searches of his bedroom. Specifically, defendant argues that the police, lacking probable cause, arrested him at the time they took him from his residence and, therefore, his confession and other incriminating evidence were the fruits of an illegal arrest, requiring suppression.

[1] Link to KeyCite Notes[2] Link to KeyCite Notes Probable cause exists if the facts and circumstances known by the arresting police officers are sufficient to cause a reasonable man to believe that an offense has been committed and that the defendant has committed the offense. ( People v. Creach (1980), 79 Ill.2d 96, 101, 37 Ill.Dec. 338, 402 N.E.2d 228.) An arrest occurs when the police detain a person in a manner such that a reasonable, innocent person in the same situation would not consider himself free to go. ( People v. Reynolds (1983), 94 Ill.2d 160, 165, 68 Ill.Dec. 122, 445 N.E.2d 766.) All evidence directly traceable to an arrest made without probable cause must be suppressed where there are no intervening events to break the connection between a defendant's illegal detention and the evidence obtained as a result therefrom. People v. Travis (1984), 122 Ill.App.3d 671, 676, 78 Ill.Dec. 535, 462 N.E.2d 654.

Here, the State concedes that no probable cause to arrest defendant existed at the time he was taken from his residence, but argues defendant was not “seized” at that time so as to require probable cause. Instead, the State argues that defendant was not considered under arrest until 4 a.m., at which time probable cause existed, and that defendant's consent to the searches and his confession were voluntarily made. In support of its contention that defendant was not seized at the earlier time, the State relies on People v. Reed (1982), 104 Ill.App.3d 331, 60 Ill.Dec. 80, 432 N.E.2d 979, and People v. Gale (1979), 72 Ill.App.3d 23, 28 Ill.Dec. 562, 390 N.E.2d 921. We find these cases unpersuasive.

In Reed, police officers investigating a murder and robbery did not ask the defendant if he wanted to be questioned at his apartment, but instead asked him to accompany them to the police station. At the station, the defendant was given Miranda warnings and, after four hours of interrogation, confessed to the crimes. In Gale, **106 ***226 the defendant, was asked to accompany an officer to the police station regarding a theft investigation. At the station, the defendant was given Miranda warnings, but was not told he was under arrest. After being interviewed for 30 minutes, he confessed to committing the theft. Both the Reed and Gale courts concluded that the defendants were not illegally arrested because a reasonable, innocent person in the same position as defendants would not have considered himself under arrest.

The circumstances of defendant's detention in the present case *565 greatly differ from those in the Reed and Gale cases. Here, defendant was continuously interrogated for an 18-hour period during which time he was deprived of the basic necessities of life. For 18 hours defendant had nothing to eat or drink and disputedly was not allowed to sleep. Only once during the entire time was a restroom made available to him. On the other hand, in Reed and Gale, the defendants were only detained for four hours and 30 minutes, respectively, and were not subjected to the deprivations defendant here endured. We further note that the Reed court, in fact, specifically considered the absence of a continuous, lengthy interrogation in concluding that Reed had not been illegally arrested.

We find that the circumstances in the present case are more analogous to those in People v. Townes (1982), 91 Ill.2d 32, 61 Ill.Dec. 614, 435 N.E.2d 103, cert. denied (1982), 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143. There, as here, the defendant was questioned over a lengthy period of time by the police. On the basis of a vague physical description given by a rape victim, the police asked the defendant to accompany them to the police station instead of questioning him at his home. At the station, he was placed in an interview room and interrogated five times during a 12-hour period, during which time he was repeatedly given Miranda warnings. The police obtained the defendant's consent to search his home and car, they never told him he was free to leave and they subsequently obtained a confession from him. The Townes court, relying on the apposite case of Dunaway v. New York (1979), 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824, held that the defendant's detention resembled a traditional arrest and the circumstances indicated that a reasonable person in the same position as the defendant would not have believed he was free to leave. The court also held that the seizure of the defendant had an improper “quality of purposefulness” in that it appeared that the police were conducting an “expedition for evidence” in the hope of obtaining sufficient information upon which to predicate the probable cause necessary for an arrest. Townes, 91 Ill.2d 32, 37-38, 61 Ill.Dec. 614, 435 N.E.2d 103; Dunaway, 442 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824, 839.

We believe the circumstances in the instant case present far more compelling reasons than Townes for requiring reversal of the trial court's judgment. Here, in addition to the obvious similarities of this case and Townes, the police continuously interrogated defendant eight times during an 18-hour period-three interrogation sessions more and 6 hours longer than the interrogation of the defendant in Townes. Throughout his 18-hour detention, as previously noted, *566 defendant also was deprived of the basic necessities of life. He was not offered anything to eat or drink for 18 hours. A restroom was made available to him on only one occasion during his detention. Although it is disputed whether defendant was permitted to sleep during this time, we note that if in fact he did so he would have had to sleep on the floor or sitting up, since there was no bed in the room. In addition, any sleep that defendant may have gotten would have been, at best, minimal due to the interruptions created by the repeated interrogation sessions which usually lasted at least 30 minutes each, i.e., 11 p.m., 1:30 a.m., 5 a.m., 9:30 a.m., 10:45 a.m., 1 p.m. and 2:30 p.m. Finally, we note that defendant was subjected to having his underwear and gym shoes, which he had been wearing, taken away from him prior to giving any confession.

**107 ***227 Under the totality of the circumstances, we conclude that defendant's detention, like that of the defendant in Townes, resembled a traditional arrest and indicates that a reasonable, innocent person in defendant's position would not have believed he was free to leave. We also find that the unconstitutional misconduct of the police was a purposeful expedition for evidence in the hope of obtaining sufficient information upon which to predicate the probable cause necessary for defendant's arrest. We note that even though the detectives stated they had probable cause to arrest defendant at 4 a.m. as a result of the evidence obtained from their first search of his bedroom, they nonetheless did not call in an assistant State's Attorney at that time, but instead interrogated defendant two more times until obtaining a second consent to search form and a confession from him at 9:30 a.m. Accordingly, since the police lacked probable cause to arrest defendant at the time they took him from his residence, which the State concedes, we hold that defendant was illegally seized in violation of the fourth amendment.

[3] Link to KeyCite Notes We recognize, although the State does not so argue, that the illegality of an arrest does not per se render incriminating evidence inadmissible where there are intervening events to break the connection between a defendant's illegal detention and the evidence obtained as a result therefrom. ( People v. Travis (1984), 122 Ill.App.3d 671, 676, 78 Ill.Dec. 535, 462 N.E.2d 654.) Under the facts and circumstances of the instant case, clearly no intervening events occurred. Accordingly, defendant's confession and the evidence obtained as a result of the two searches required suppression since the taint of the illegal arrest was not dissipated.

In light of the above disposition, we need not address defendant's further contentions raised on appeal. We feel compelled, however,*567 to comment on the State's closing rebuttal argument because similar remarks complained of by defendant could recur at retrial. We find that a number of the State's remarks were grossly improper, prejudicial, inflammatory and designed to arouse the passions of the jury against defendant. These remarks could not possibly aid the jury in weighing or evaluating the evidence. ( People v. Polenik (1950), 407 Ill. 337, 348, 95 N.E.2d 414.) “[N]o matter how reprehensible [a defendant's crime], ‘be he sinner or a saint, [he] has the right to expect that his fate will be fixed with reference only to the circumstances of the crime with which he is charged.’ ” ( People v. Hope (Docket No. 58462, filed February 21, 1986), --- Ill.2d ----, ----, (slip op. at 9).) (quoting People v. Gregory (1961), 22 Ill.2d 601, 606, 17 N.E.2d 120).) We accordingly so admonish the State.

Finally, we believe that the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable doubt. This does not mean we are making a finding as to defendant's guilt or innocence which would be binding on retrial, but rather our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. See People v. Taylor (1979), 76 Ill.2d 289, 309, 29 Ill.Dec. 103, 391 N.E.2d 366.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.


LORENZ and PINCHAM, JJ., concur.

Prozac, feel free to express disagreements on the substantive questions. Dissenting opinions are welcome here, and in fact we have gone so far as to dub you a "trusted commenter" so your comments appear immediately without being approved.

My point was to explain how we run the blog. We are not going to change it to accommodate you. Going elsewhere is your option if you don't like the way we run it.

Thanks for posting the opinion, ward. The facts of the case are as chilling as a horror movie. It is easy to see why the news accounts call him dangerous and evil. Once the detectives learned of the rape of the little boy, and then learned Ealy was already facing a current charge of rape (Why was he out on that charge?) it is easy to understand the detectives' motives. They had their man in the face of a terribly heinous crime. It is difficult to fault them in this case.

However, the exclusionary rule has a much wider scope and is the result of police brutality and the 3rd degree. To protect the Constitution it is necessary to protect it even in the most heinous cases. The substance of the ruling is here:

Here, in addition to the obvious similarities of this case and Townes, the police continuously interrogated defendant eight times during an 18-hour period-three interrogation sessions more and 6 hours longer than the interrogation of the defendant in Townes. Throughout his 18-hour detention, as previously noted, *566 defendant also was deprived of the basic necessities of life. He was not offered anything to eat or drink for 18 hours. A restroom was made available to him on only one occasion during his detention. Although it is disputed whether defendant was permitted to sleep during this time, we note that if in fact he did so he would have had to sleep on the floor or sitting up, since there was no bed in the room. In addition, any sleep that defendant may have gotten would have been, at best, minimal due to the interruptions created by the repeated interrogation sessions which usually lasted at least 30 minutes each, i.e., 11 p.m., 1:30 a.m., 5 a.m., 9:30 a.m., 10:45 a.m., 1 p.m. and 2:30 p.m. Finally, we note that defendant was subjected to having his underwear and gym shoes, which he had been wearing, taken away from him prior to giving any confession.

Under the totality of the circumstances, we conclude that defendant's detention, like that of the defendant in Townes, resembled a traditional arrest and indicates that a reasonable, innocent person in defendant's position would not have believed he was free to leave. We also find that the unconstitutional misconduct of the police was a purposeful expedition for evidence in the hope of obtaining sufficient information upon which to predicate the probable cause necessary for defendant's arrest. We note that even though the detectives stated they had probable cause to arrest defendant at 4 a.m. as a result of the evidence obtained from their first search of his bedroom, they nonetheless did not call in an assistant State's Attorney at that time, but instead interrogated defendant two more times until obtaining a second consent to search form and a confession from him at 9:30 a.m. Accordingly, since the police lacked probable cause to arrest defendant at the time they took him from his residence, which the State concedes, we hold that defendant was illegally seized in violation of the fourth amendment.

In an emotional case like this one, the Constitution seems to get in the way of justice. But that belies the fact that the exclusionary rule is an attempt to uphold justice and maintain the respect of law, as held in Culombe v. Connecticut, 367 U.S. 568, 603 -06 (1961):

At the other pole is a cluster of convictions each expressive, in a different manifestation, of the basic notion that the terrible engine of the criminal law is not to be used to overreach individuals who stand helpless against it. 21 Among these are the notions that men are not to be imprisoned at the unfettered will of their prosecutors, nor subjected to physical brutality by officials charged with the investigation of crime. Cardinal among them, also, is the conviction, basic to our legal order, that men are not to be exploited for the information necessary to condemn them before the law, that, in Hawkins' words, a prisoner is not "to be made the deluded instrument of his own conviction." 2 Hawkins, Pleas of the Crown (8th ed. 1824), 595. This principle, branded into the consciousness of our civilization by the memory of the secret inquisitions, sometimes practiced with torture, which were borrowed briefly from the continent during the era of the Star Chamber, 22 was well known to those who established the American governments. 23 Its essence is the requirement [367 U.S. 568, 582] that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips. See Blackburn v. Alabama, 361 U.S. 199, 206 -207; Chambers v. Florida, 309 U.S. 227, 235 -238. Quite early the English courts acknowledged the barrier that, in this regard, set off the accusatorial system from the inquisitorial. 24 And soon [367 U.S. 568, 583] they came to enforce it by the rigorous demand that an extra-judicial confession, if it was to be offered in evidence against a man, must be the product of his own free choice. 25 So fundamental, historically, is this concept, that the [367 U.S. 568, 584] Fourteenth Amendment, as enforced by our decisions, applied it as a limitation upon the criminal procedure of the States. Consistently with that Amendment neither the body nor mind of an accused may be twisted until he breaks. Brown v. Mississippi, 297 U.S. 278 ; Leyra v. Denno, 347 U.S. 556 .

The debate is fundamental and cases like Ealy's are a powerful force in favor of overturing the exclusionary rule. As Culombe points out, however, there is also strong argument for the other side, the Inquisition for one. Today we have Guantanamo and the logical conclusion of no exclusionary rule, no habeas corpus and the freedom to torture in interrogations. Some who support those policies have important positions of responsibility in the making and enforcing of our own laws, and it is not difficult to imagine they would so extend them. Culombe found a find a balance within the two extremes.

In Ealy's case, I wonder about a few things:

1. Why didn't they get a search warrant from a judge?
2. Why couldn't they use DNA evidence found in the rape of the little boy? That wasn't found at his house and so wouldn't be excluded, would it? DNA is often enough to convict without a confession or other evidence.
3. It is fairly clear the detectives were right when they thought they had their man, and their wanting to hold him was understandable. Though they didn't have probable cause in the beginning, once they did, did they have any options that would have held up in court? Could they invite him to MacDonald's for a shake and burger then return to the interrogation room for example?

It is fairly clear the detectives failed to follow established law, and it is fairly clear the case was so heinous they likely thought that itself was enough to justify extreme measures, but I wonder what else could be done in the future to prevent this and still preserve the balance found Culombe. If they had told him now and then he was free to go, would that have done it? When the detectives are as right as they were in this case, there must be a way to keep the pressure on while not letting someone so dangerous flee, but still stay within bounds of the exclusionary rule. Why don't prosecutors work with the police and find a uniform policy that is both Constitutional and effective?

The Innocence Project still finds many flaws that need corrected for justice to be done. Mandatory recording of all interrogations could be one solution. That will help protect the police and the accused. While those reforms are happening, we can't let especially emotional and heinous crimes, no matter how revolting, sway the balance of justice too far out of kilter.

Like everyone else, I wish there was some way to prosecute him for the previous murders, and then Mary Hutchison would still be alive. Prosecuting on DNA evidence would have been ideal, but maybe that's just naive thinking. Overturning the exclusionary rule and losing that balance of power just isn't a solution to me, but something must be.

One of the interesting issues in the Parete case (from my home town) is that now the defendant's family is claiming that his behavior was due to the fact that he recently stopped taking Prozac. Besides the fact that many recent studies have discounted the notion that antidepressants are associated with violence, this is just another example of how people blame *everyone* except themselves for their behavior. The law, through it's acceptance of the various "syndrome" defenses only perpetuates this fact.

Here is another spin on the ramifications of the Ealy case:

Capital punishment -- another argument for it
By Dennis Prager
Tuesday, December 12, 2006

Over the years I have offered many arguments for capital punishment for murder:

1. It is a cosmic injustice to allow a murderer to keep his life.

2. Killing murderers is society's only way to teach how terrible murder is. The only real way a society can express its revulsion at any criminal behavior is through the punishment it metes out. If murderers all got 10 years in prison and thieves all got 20 years in prison, that would be society's way of saying that thievery is worse than murder. A society that kills murderers is saying that murder is more heinous a crime than a society that keeps all its murderers alive.

3. It can, if widely enacted, deter some murders. Though I regard this as a less important argument than the first two, there is no doubt that it is true. Everyone acknowledges that punishments can deter all other crimes -- why wouldn't capital punishment deter some murders? Is murder the only crime unaffected by punishment?

The great thinker Ernest van den Haag brilliantly made the case for execution as deterrence: Imagine if a state announced that murders committed Mondays, Wednesdays and Fridays would be punishable by execution and murders committed the other days of the week would be punishable by imprisonment. Would murder rates remain the same as they are now on all the days of the week? I doubt it.

The most common objection opponents offer against capital punishment is that innocents may be executed.

My answer has always been that this is so rare (I do not know of a proved case of mistaken execution in America in the last 50 years) that society must be prepared to pay that terrible price. Why? Among other reasons, because more innocents will be killed by murderers who are not executed (in prison, or once released or if they escape) than will be killed by the state in erroneous executions.

So, yes, I acknowledge the possibility of an innocent being killed by the state because of a mistaken murder conviction. But we often have the tragedy of innocents dying because of a social policy. I support higher speed limits even when shown that they lead to more traffic fatalities. I support the right of people to drink alcohol even though the amount of violence directly emanating from alcohol consumption -- from drunk drivers to spousal and child abuse -- is so high.

And now I have an additional argument. Regarding murder, it is not only those of us who support capital punishment who support a policy that can lead to the killing of innocents. So do almost all those opposed to capital punishment. Nearly all opponents of capital punishment (and many supporters of capital punishment) believe that if the police obtained evidence illegally, the conviction of a murderer should be overturned.

Take this Illinois story.

In 1982, James Ealy was convicted of the strangulation murders of a family -- including a mother and her two children. It took the jury just four hours to render the guilty verdict, and Ealy was sentenced to life in prison without the possibility of parole. However, his lawyers argued that the police had improperly obtained evidence, and an Illinois Appellate Court, whose justices acknowledged Ealy was guilty of the murders, vacated the ruling. But without that improperly obtained evidence, Ealy could not be retried successfully, and he was released from prison.

On Nov. 27, 2006, Ealy strangled to death Mary Hutchison, a 45-year-old manager of a Burger King in Lindenhurst, Ill.

That woman was killed because many Americans believe that it is better to let a murderer go free than to convict one with evidence improperly obtained.

Whether that position is right or wrong is not relevant here. What is relevant is this: The people who believe in this policy do so knowing that it will lead to the murder of innocent people like Mary Hutchison, just as I believe in capital punishment knowing that it might lead to the killing of an innocent person. So those who still wish to argue for keeping all murderers alive will need to argue something other than "an innocent may be killed." They already support a policy that ensures innocents will be killed.

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