What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview

Kane County Nuggets

People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58)

What's the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it's like working in the criminal law.

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Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in criminal litigation:

In This Episode...

"There's an old saying about losing your 'tall'. 'Tall' is your favorite marble." -- Alan Downen.

Illinois Attorney Alan Downen

Alan Downen has been a member of the Illinois bar since 1974. He's a solo practitioner concentrating his practice in the areas of criminal, DUI, traffic law.

His office is in McLeansboro, Illinois.

"Can't Miss" Moments:

✓ Here's an example of the kind of fatally flawed or legally insufficient charging document we are talking about: A defendant charged with aggravated domestic battery is charged by information. However, the information is missing the mental state. It doesn't state if defendant acted "knowingly" or "intentionally". It also omits the type of battery the defendant is alleged to have done. It doesn't say if he caused bodily harm or committed insulting or provoking contact. (Go to 3:35)

✓ What's the law now? What does a court do when it's confronted with a legally insufficient complaint? Well it depends. There are two legal standards. If a motion to dismiss is filed pretrial the court will adopt a "strict construction" policy and automatically dismiss the charges without prejudice. That means the state is free to refile. If the motion to dismiss if filed on appeal or after the trial is over then a defendant must show prejudice to get the charges dismissed. (Go to 5:07)

✓ Some defense attorneys say they don't the prosecution a darn thing. There's nothing wrong with lying in the weeds and springing the issue on the state when the time is right. (Go to 6:40)

✓ Why some judges really hate a motion to dismiss, and why they'll accuse you of "sandbagging" and other dastardly legal things. (Go to 7:16) & (Go to 15:40)

✓ "Like any attorney, if the judge asks you a question and you answer like this, 'Yea - I'm ready to go' when you know that there's a problem. That's kinda troublesome to me as an attorney...But that's kinda the scenario." (Go to 8:42)

✓ The problem with informing the state they have a bad charge. (Go to 9:20)

✓ Why it better to save your motion to dismiss until after the trial has started. Sure, you have to show prejudice but a few cases demonstrate that can be done. (Go to 9:51)

✓ The thing about the Rowell case is that it really highlights how a defense attorney can go about demonstrating the prejudice that results to an accused with a fatally flawed charging document is filed against them. This is the "bible" on insufficient charging instruments. (Go to 11:49)

✓ Talk about getting caught in court with your pants down. This might be every prosecutor's worst nightmare. (Go to 11:20)

✓ The number one lesson for prosecutors about this discussion is this. Some of them will do it. Many more won't and that's exactly why criminal defense can be so fun sometimes. (Go to 13:55)

✓ Why defense attorneys sometimes win by filing "the wrong" motion against all precedent and contrary to clearly applicable laws, and why judges are quick to grant you these "meritless" motions. (Go to 17:49)

✓ "You have a duty to the court as a lawyer to be honest and forthright. But you also have a duty to your client. Sometimes, as you say, the lines are just real clear." (Go to 22:29)

✓ What an older attorney told Alan about the practice of law. Why sometimes it's best to do nothing even when you know something can be done. (Go to 24:25)

Links & Resources

• 725 ILCS 5/11-3(a)(3) states that In Illinois "a charge shall be in writing and allege the commission of an offense by: Setting forth the nature and elements of the offense charged;"
• People v. Rowell, 229 Ill. 2nd 82 (May 2008) (Illinois Supreme Court finds prejudice to the defense from a fatally flawed charging document.)
• People v. Pendleton, 2017 IL App (3d) 140814-U (March) (trial court erred in denying defendant’s midtrial motion to dismiss because defendant was prejudiced by the insufficient charges)

See Also

You may also want to check out...

• Episode 419 - People v. Sheley, 2017 IL App (3d) 140659 (October) (concurring opinions discussing "sandbagging" and why it's a disfavored practice)
• Episode 399 - People v. Frazier, 2107 IL App(5th) 140493 (July) (defense attorney accused of being ineffective for filing the motion to dismiss after the trial had started)
• Episode 249 - People v. Swift, 2016 IL App (3d) 140604 (October) (because defendant waited until the trial to begin he had to show prejudice to win a dismissal)