How I Would Prosecute the Chicago Hate Crime

Last week, four black youths — two men and two women — kidnapped a mentally-disabled white man and tortured him for several hours in Barack Obama’s hometown of Chicago. They were arrested and charged, and were denied bond by the Court in Cook County, Illinois. I worked as a prosecutor for over four years, and now work as a defense attorney. Based on my experience, I conclude that the four public defenders who are likely to represent these perpetrators have an unenviable task. Given the vagaries of jurors, no case is a “slam dunk,” but the facts clearly favor the prosecution. The case would not be hard to present to a jury since the crimes were on video, and, if media reports are to be believed, the black assailants made various admissions to the police. The defendants are probably looking at serious prison time so long as the prosecution does not waiver.

All the defendants are now charged with aggravated kidnapping, aggravated unlawful restraint, and aggravated battery with a deadly weapon. Some face other, lesser charges, such as robbery, residential burglary, and possession of a stolen vehicle. The four have also been charged with hate crimes for targeting the victim, both because he was white and because he is mentally handicapped. A hate-crimes conviction could add three more years to the sentences. Each defendant could face up to 30 years in prison.

So what is the most likely outcome? Maximum sentences are hard to get without a jury trial and conviction on all counts. A competent defense counsel is not going to tell his client to plead as charged. Therefore, these cases are likely to be resolved through some sort of plea bargain. No big-city prosecutor has the resources to take every case to trial, which is why about 95 percent of criminal cases are resolved through plea negotiations — in exchange for a guilty plea and avoiding trial, defendants get shorter prison terms than would be likely if they went to trial and lost.

Prosecutors occasionally take a high-profile case to trial out of principle or to make a public statement. That is probably why prosecutors rejected Dylann Roof’s offer to serve the rest of his life in prison and instead convinced a jury to impose the death penalty.

The Chicago case is significantly different. The victim was not murdered, so none of the defendants can get the death penalty. If they go to trial, there is also a serious risk that a jury could convict the defendants of what is known as a lesser-included offense, which is a crime that is like the one charged, but carries a lesser penalty. For example, a jury could find the defendants guilty of kidnapping rather than aggravated kidnapping.

What’s the difference? Under Illinois law if the victim is “mentally disabled” or suffers bodily harm, the crime is aggravated, and the maximum sentence jumps from 10 to 30 years. In this case, the crime seems clearly aggravated, but it is impossible to predict how jurors will interpret bodily harm or mental disability. Jurors could settle on the lesser charge because they thought it was appropriate, or it could be a compromise to avoid a hung jury. Simple kidnapping would reduce the maximum allowable penalty from 30 to 10 years.

Actual sentencing could vary greatly depending on a judge’s decision on whether to impose concurrent or consecutive sentencing and on whatever prior records the defendants may have.

Besides the current state charges, the federal government could also bring charges under its own hate-crime laws. Federal hate-crime convictions can carry a maximum penalty of 10 years in federal prison, which can be increased to life if kidnapping is involved. The federal government has plenary discretion — it can prosecute or not, as it sees fit. The prohibition against double jeopardy (being tried twice for the same crime) may not apply because federal crimes may have different elements from state crimes and are — technically speaking — not the same act. This crime has attracted a great deal of media interest, and an eager young federal prosecutor could see it as a chance to further his career.

There are political considerations that may influence whether the Justice Department prosecutes. A Justice Department run by Eric Holder or Loretta Lynch probably would not prosecute, but one run by Jeff Sessions might.

If I were a state prosecutor handing this case, I would have two goals. First, I would want a plea bargain so as to avoid the bother of a trial. Second, I would want the maximum penalty I can get the defendants to agree to without a trial. I would tell their lawyers that federal involvement was a distinct possibility, which meant a potential maximum sentence of life in prison rather than the 30-year maximum under state law. I would then offer each defendant no less than 20 years in state prison if they agree to a plea. I would add that if they refused my offer I would put them on trial and lobby the Justice Department to indict them. Twenty years in jail is a long time, but these defendants are young, and they could come out of jail in their late 30s with at least a chance of a decent life.

To make it very clear that I was not bluffing — that I was prepared to try them if they refused my offer — I would also offer one of the assailants a lesser, 10-year sentence if he or she testified against the others. It would be first-come-first-served; whoever wanted could take the bait first. Why would I make this offer? No case, even with video evidence like this, is a slam dunk. A good prosecutor will want testimony about the intent of the parties, which is a critical element of these crimes.

Except for a few crimes, such as driving under the influence, criminal intent is an essential aspect of the crime. In this case, the video is egregious, but even with that, the best I could ask a jury to do is infer intent. A lot of strange people end up on juries, and sometimes the way they reach their decisions is shocking. There is no better evidence of intent than a party’s own admissions — about himself and his accomplices.

An offer of this type would be very likely to produce satisfactory pleas and avoid a time-consuming trial. The sentences would be long enough so that the feds would probably not think it necessary to prosecute. Also, the victim would not have to testify, which is good for two reasons. First, he would not have to relive — in public — the trauma he has gone through. Second, it is always risky when your witnesses are mentally disabled, as this victim is. Even a poor defense lawyer could lead him to say something on the stand that could hurt the case.

Hate-crime legislation was mostly the result of leftist agitation. Ironically, a Jeff Sessions Justice Department could use it forcefully against blacks. Whites do not use the “Ferguson Option,” which is to say that they do not riot for racial reasons. With proper prosecution they will not have to. These blacks preyed on a very vulnerable victim and should be punished accordingly.