Quick Hits – The Rak Trial Ends!

First, after 14 hours of covering the Daniel Rak murder trial, I can tell you firsthand that Kane County really doesn’t need a jail. If they sentenced offenders to sit in a courtroom gallery for the better part of a day the recidivism rate would drop to zero.

Those benches should be classified as cruel and unusual punishment.

Second, as we’re about to dive into the final trial day, please understand that when I compliment someone, or take them to task, it’s an in-the-moment kind of thing. If the evidence changes, my mind changes, too.

For example, I can’t tell you how encouraging it was to see Judge D. J. Tegeler return to the person I’ve known and loved for the last 12 years. I understand how putting on the black dress can be a heady proposition, but that’s no excuse for treating people poorly.

Not only did Tegeler treat the jury with respect, dignity and humility, but in those 14 hours I disagreed with just one of his rulings.

Third, if I question someone’s professional competence, it is not intended to demean them as an individual. We all have our strengths and weaknesses. To wit, the Cubs still haven’t responded to my incessant entreaties to play centerfield.

With all of that out of the way, let’s get started!

 

 

The Prosecution

In the words of that great philosopher Lemony Snicket, their final trial day was certainly “a series of unfortunate events.”

Though we’ve previously touched on it, for the life of me, I cannot understand why lead prosecutor Alex Bederdka put Kane County forensic pathologist James Filkins back on the stand knowing he’d essentially committed perjury in regards to taking tissue samples from Jeffrey Rak’s body.

Not only did Filkins originally testify that no samples were taken, but he denied their existence when lead public defender Kelli Childress emailed him back in June. Filkins tried to explain it away as a miscommunication, but the horrified looks on the jurors’ faces said it all.

I’m almost as baffled by Bederka’s decision to let co-counsel Lori Anderson do the closing. My guess is he wanted to offset what he perceived to be an almost all female defense team advantage, but let me tell ya, it didn’t work.

Because, while Bederka can command a courtroom when he wants to, Anderson cannot. She:

·         Walks seriously hunched over

·         Stood behind the lectern the entire time

·         Came across as mean, petty and arrogant

·         Talks in a monotone

·         Generally lacks an affect

She did get right in front of the jury, but the separation created by podium negated that effect. So, halfway through her summation the jury got those glazed looks and focused on everything but her.

To make matters much worse, her closing argument wasn’t proactive – it was a reaction to many defense contentions. And that doesn’t work when the State has to prove their case beyond a reasonable doubt.

I will clearly stipulate that two cases aren’t enough to make a final judgement – and I’m the crime victim in one of them – but I’m truly beginning to doubt Bederka’s competence as an attorney.

So, the defense summation reality was, all Childress had to do was be competent and the verdict was hers.

 

The Defense

But she was so much more than competent!

And I can say this because Childress and I do the same thing – we convince people to vote for our clients. The major difference is, she has to convince 13 people while I have to persuade 100,000. But the communication strategies are the same.

Repeatedly hammer your point home with a simple and memorable message that resonates with the voters – or jury. And she did just that:

1. Childress (finally) thanked the jury, and she did so in a heartfelt and direct eye-contact way. How bleepin’ difficult is it to show some gratitude for those folks’ service and acknowledge their humanity? The prosecution clearly considered them to be a mere accessory.

2. She did resort to the lectern, but quickly moved away from it so there was no barrier between her and the jury. Juries HATE IT when they can’t see an attorney’s hands. And if that 5 foot 6 inch woman ever stands behind a podium in my presence again, I will jump the gallery divider and tackle her before court security can do a damn thing about it.

3. To say Childress commanded the courtroom would be a massive understatement. I’m sure she wouldn’t like this analogy, but anyone who’s had ever a pet parakeet knows just how loud and demanding those birds can be. They can completely take over a room.

So clearly, size doesn’t matter in some cases, and courtroom presence is clearly one of them. Childress effectively used the courtroom space, her non-verbal communication was perfect, and she was just loud and indignant enough to leave no doubt about who was in charge, but not lose the jury,

It’s too bad they don’t allow cameras in Kane County courtrooms, because high school girls should be required to watch that closing statement as a lesson in assertiveness without being mean or nasty.

4. Then, while the prosecution posted text on the courtroom monitors, Childress wrote her main arguments out on a large white board. That meant the jury had to watch those words being formed. “The State is unable to prove x,” “The State is unable to prove y” etc. It was a simple stroke of genius. She has nice handwriting too!

5. Childress drew the jury in by starting off moderately and building to a crescendo at just the right time. That’s exactly how a good political campaign works. Peak too soon and you lose ‘em. Don’t peak at all and you lose the election. And the Albert Einstein quote was the perfect start from which everything else flowed.

6. As she got more forceful, Childress made it abundantly clear that the defense didn’t have to prove a damn thing, but she would anyway! Using a series of crime scene photographs, she provided a step-by-step outline of another possible cause of death, and her theory was far more plausible than the prosecution’s.

7. Then she tied it all together:

·         An overzealous police investigator who ignored the facts

·         A prejudicial investigation as a result

·         So everyone blamed everyone else for botching the investigation

·         The prosecution’s “facts” don’t fit the evidence

·         Daniel Rak loved his father

·         There’s enough reasonable doubt to drive a truck through it

And as she made those final points, she slowly moderated her delivery, drawing the jury back in such that most of them were leaning towards her as she finished. Even the jurors I perceived as unsympathetic to the defense were getting teary eyed.

 

It was a virtually flawless exercise in effective persuasive communication that lead to one of the shortest first degree murder deliberations in trial history. If, like Tegeler did as an attorney, Childress learns to connect with the jury DURING a trial, she will be unbeatable.

In the end, Daniel Rak was convicted of aggravated domestic violence which can carry a three to six year prison sentence, but I’m bettin’ Judge Tegeler goes with time served and probation.

I also hope that Mr. Rak never touches alcohol again – I can barely look at a bottle of tequila after that trial.

A final point. Right before the defense summation, the large courtroom computer monitors stopped working and it took a bevy of IT people 30 minutes to get them going again. Though it certainly wasn’t planned – Childress’ administrative assistant was beside herself trying to correct the problem – much like that game seven World Series rain delay saved the Cubs, the pause put some distance between the two closing arguments.

And that didn’t hurt the defense one bit. Was someone else looking out for Daniel? I suppose we’ll never know.

 

 

Quick Hits – Not Guilty!

Sources directly inside the courtroom just informed me that Daniel Rak was found not guilty on the most serious counts. And that was after a mere four hours of deliberations!

I have to tell ya, though this case reeked of reasonable doubt, Kane County Public Defender Kelli Childress was fucking brilliant today – and I don’t apply that term lightly. (Brilliant not fucking – I use “fucking” all the time!)

Her destruction of Kane County forensic pathologist James Filkins was an amazing thing to watch, and for someone who did her best to lose the jury early on, Childress’ closing statement was one for the ages. Being in that courtroom today was like saying you were at Wrigley Field for Ruth’s called shot.

We will delve far more deeply into Ms. Childress’ closing statement tomorrow.

Childress

Kane County Public Defender Kelli Childress

But my elation over the fact that justice was finally served is severely tempered by the fact that a man sat in jail for a year-and-a-half on charges that never should’ve been filed. And the rapidity with which the jurors came to their verdict is all the proof any of us really need.

As I’ve been saying for the past six months, the Kane County State’s Attorney’s Office is completely out of control. State’s Attorney Joe McMahon is far more concerned with advancing his career than actually serving the people who elected him and he’s let the inmates run the asylum.

Considering this abject debacle, I’m calling on Joe McMahon, Joe Cullen and Alex Bederka to do the right thing and resign. This entire charge ’em all and let the judge and jury sort ’em out mentality cannot stand. That isn’t justice. The Kane County taxpayers deserve far better than this.

But for the efforts of a courageous public defender who could make four times the money in private practice, Daniel Rak might be facing 60 years in jail.

Ms. Childress, you have my undying admiration. These days, the good guys and gals are few and far between. But you are most certainly one of the best.  I would encourage you to keep up the good work.

 

 

 

Quick Hits Supplemental – The Rak Trial Continues

Please forgive any grammatical error and typos, I had no time to edit this!

Yesterday, I sat in on the Daniel Rak murder trial for what turned out to be 2.5 fascinating hours. Let’s just say it was a very good day for the defense. Let’s do this in a list format so it will be a bit easier to follow:

A. July 24, 2017

1. On Sunday, I mistakenly said they were headed into the rebuttal phase, but, due to scheduling issues, they were forced to let the expert medical witnesses testify out of order on Thursday and Friday. So technically, the prosecution rested yesterday (7/24) and the defense is currently putting on their case.

2. Jeffrey Rak’s ex-wife Beth Marmon was a powerful witness and, despite being very soft-spoken, had the jury’s full and undivided attention. She basically portrayed her ex-husband as a high functioning, occasionally blackout drunk, who regularly prescribed himself drugs. But because Ms. Childress refuses to look at the jury, she almost lost them when it appeared as if she was accusing the ex-wife on being in on the veterinary prescription drug thing. I know she didn’t mean to make that connection, but by their body language, that’s exactly how the jury interpreted it, and they weren’t happy.

3. But then Alex Bederka saved the defense’s behind by verbally assaulting that very sympathetic witness under cross examination. And the jury didn’t like that one bleeping bit. Bederka may well be the most tone deaf person I’ve ever encountered, and the fact that he and I don’t get along has nothing to do with that assessment.

4. Then, between Kane County Deputy Coroner Steve Laker and Coroner Rob Russell, at 11:50 a.m., the defense officially instilled reasonable doubt. Though it’s certainly not their job to direct the investigation, Childress hammered home the notions that, not only did the Coroner’s office fail to test heart, lung and other tissue, but they failed to preserve the body so no further tests could be done. And Childress put the icing on the testimonial cake by repeating the fact that the Coroner’s office didn’t pay attention to the 100+ veterinary medicine bottles lying around the Rak house.

5. Coroner Rob Russell was a good witness, but Childress kept reinforcing the point that the coroner’s office simply went along with the prejudicial police theory of events at the Rak household that day – and then they released the body to be cremated. When she closed that deal, 70 percent of the jury was engaged in “pacifying” body language which is an unconscious limbic system response to hearing something they really didn’t like.

6. Alex Bederka finally won an objection! That’s the first one I’ve seen him win in 7 hours of observing the trial.

7. Then, inexplicably, after the defense clearly sowed those massive seeds of reasonable doubt, Bederka offered an accurate, but mere two-minute Rob Russell cross that would’ve been effective on a level playing field, but the field was far from level at that point. Childress’ direct was just too good.

We’re I counsel, I would’ve manufactured some sort of five minute break before cross, because the jury was clearly still digesting the defense’s testimony. Then I would’ve countered with the truth that the coroner’s office is NOT responsible for directing a murder investigation in a specific point by point narration to undo the damage that already had been done. Sometimes you can be too brief.

Rak

Daniel Rak

B. July 25, 2017

With closing statements suddenly imminent, I headed back to courtroom 311 this morning at 9 a.m. and witnessed the whole proceeding. The entire rebuttal phase consisted of the prosecution bringing back forensic pathologist Dr. James Filkins to dispute defense medical expert witness extraordinaire Dr. Douglass Miller.

And it was an unmitigated disaster. So much so that the prosecution came back with a lesser possible charge (involuntary manslaughter) during the jury instruction determination phase.

Both in a June email, and last week in court, Filkins insisted he’d never taken lung, heart, or liver tissue samples from Jeffrey Rak. But today, he suddenly testified that he had taken those samples, but had no clue what happened to them.

So, Childress absolutely tore him to pieces to the point where the jury completely focused on Childress and wouldn’t even look at Filkins. You don’t need a body language expert like me to tell you what that means.

Filkins tried to explain it away with a bizarre circular logic, but by the time he was done testifying, to quote a TV judge, the jury wouldn’t believe a word he said if his tongue came notarized.

Knowing his testimony reversal was imminent, I cannot fathom why Bederka would possibly put this man back on the stand for any reason whatsoever. God knows I’ve been wrong before, but if the prosecution had any chance of a First Degree murder conviction, it ended with their own rebuttal witness.

Closing statements will likely begin at 1:30 p.m. and I will be there! More tomorrow!

Quick Hits – July 24, 2017

Patriot is a great company!

Since my wife didn’t share my enthusiasm for letting our 17 year-old furnace rock till it dropped, we just got a new furnace. I think her exact words were, “If that furnace goes in the middle of January I’m kicking your sorry ass out of the house.”

We husbands call that a “motivating factor.”

Having met the fine folks at Patriot Heating and Cooling through a journalistic endeavor, I asked them to come out and give us an estimate. They actually answered My PM on July 4th and co-owner Bill White came out the following Friday.

Patriot

He thoroughly explained all of the furnace options, answered all my questions and gave us a really good price on a Rheem 95 percent efficient furnace. They came to do the installation when at the appointed time, They did exactly what they said they would in the time they said they would, and they were professional every step of the way.

And they’re doing something really cool too (no pun intended). Patriot is sponsoring a Shop Local Fair in Elburn on August 6th featuring 40 plus local businesses who will have cash-and-carry items on hand. For more information on the fair, click here!

You can find Patriot Heating and Cooling here and I highly recommend them – something I don’t do very often. To be clear, I was not paid for this endorsement, but they may well have saved my marriage.

 

Rauner doubles down

I was going to write the very same column but Urban Affairs teacher John McCarron beat me to it so I’m gonna link to it here.

All I can say is he’s dead on. This isn’t governing, it’s regularly throwing temper tantrums.

Rauner3

Meanwhile, I’m a little disappointed in my conservative and Republican brethren. You see, I’m certainly no saint (my readers tell me this), but I do consistently call out liberals, Democrats and Darth Madigan for their vast and very apparent shortcomings.

That kind of thing leads to the vast popularity I’m suffering right now.

But, with the exception of Chris Robling, I have yet to hear one conservative and/or Republican call out Governor Rauner for pulling the very same shit that the Speaker does. That list includes being an abject ideologue, demanding unwavering loyalty from his minions, and putting people in positions of power that shouldn’t be allowed to serve on a homeowner’s association.

The truth is, if I was forced to choose between Scylla and Charybdis, I’d have to choose Madigan because he is willing to deal and, though he rules with an iron fist, he doesn’t hold an entire state hostage to make a point.

And the fact that even my sensible conservative friends are mum on Rauner’s recent Illinois Policy Institute hires shrieks the word “hypocritical.”

The bottom line is, this Springfield pitched battle is going to get a lot worse before it gets better.

 

How to you say hypocritical in Russian?

Speaking of hypocritical behavior, if anyone even tangentially associated with Barack Obama had met with the Russians about acquiring campaign dirt, Tea Party heads would’ve summarily exploded, Fox would’ve had a field day and the GOP’s call for impeachment would’ve reached a fever pitch.

To be fair, some Republicans have correctly condemned this kind of clear collusion, but the level of shrieking and howling doesn’t begin to come close to what conservatives wrought when Michelle Obama wore a flippin’ sleeveless dress.

What I’m sayin’ is Tea Partiers and conservatives are a lot like vampires. They suck the blood out of the political process and they see no reflection whenever they pass a mirror

 

How do you make a small fortune in the newspaper business?

That’s right! Start with a large one. But that old saw didn’t stop former Chicago Alderman Edwin Eisendrath and a consortium of labor unions from buying the Chicago Sun-Times.

Of course, those Federal Anti-Trust folks approved the sale, in great part, to keep the paper out of the Chicago Tribune’s hands, but the fact the Eisdenrath group came up $11.5 million in escrow to offset the $4.5 million a year operating losses was a huge factor, too.

ap_17135759324073

This, of course, begs the question, who in their right mind would buy a business entity that’s hemorrhaging that kind of red ink at a time the print media depression shows no signs of abating anytime soon?

Eisendrath offered all the appropriate platitudes, but the truth is, urban and suburban newspapers are dying, no one’s come up with a way to make a Net only venture pan out financially, and most papers have already cut staff to the bare minimum.

So, I reached out to some in-the-know-folks to get some sort of explanation for Eisendrath and the unions taking this eminently risky step.

Their unanimous theory was those Illinois labor investors felt they could not abandon Chicago to the more conservative Tribune’s anti-union propaganda. They felt an independent Sun-Times was critical to their survival, and with the rise of anti-union zealots like the Governor, they were willing to consider those inevitable losses as the cost of doing businesses.

Though we’ll certainly have to see what this group does with that venerable newspaper, that sounds like the only logical explanation.

As for me, I’m happy my friends at the Sun-Times will have their jobs for the foreseeable future.

 

Special Rak trial installment tomorrow

I spent 2.5 hours at the Daniel Rak murder trial this morning and I will endeavor to get a special Tuesday Quick Hit’s edition out a bit earlier tomorrow.

Suffice it to say it was a very good morning for the defense.

Also, I made a bit of an error in Sunday’s special Quick Hit’s edition. We’re not moving on to the rebuttal phase, the medical experts testified out of order because they could only be here Thursday and Friday.

So the prosecution officially rested their case this morning and the defense is putting on theirs from the beginning. I apologize for the error.

Quick Hits – 7-24-17 Rak Trial Supplemental

There’s been so much to write about, I’m gonna post a special Sunday Quick Hits edition so I can keep up with the Rak murder trial curve and move on to more things. Enjoy!

The Rak Trial continues

It wouldn’t be fair to say it’s like encountering the proverbial car crash no one can take their eyes off of, because both sides are technically competent. So, let’s call my consistent Rak murder trial attendance something more akin to a moth and flame kinda thing. Because, let me tell ya, watching how that justice system “sausage” is made is far more terrifying than any of you might imagine.

Rak

That said, there were are a couple of interesting moments at the end of last week’s festivities.

The first was, upon receiving their pizza dinner order delivery, the jurors discovered the words “they’re innocent” scrawled on the inside cover of one of the boxes. But After being individually interviewed by Judge D. J. Tegeler, the jurors essentially said they thought it was a joke and it didn’t affect them in the least.

Personally, I’m far more disturbed by the fact that someone actually got 15 jurors to agree on anything less than 15 pizzas. That sounds like science fiction to me. Meanwhile, the St. Charles Police are working on this one and someone soon won’t have a pizza making or delivery job.

And  our second incident is why you NEVER want a jury trial. One of the alternate jurors asked court security if defendant Daniel Rak got to go home every night. C’mon! How can a raging alcoholic who lives in squalor (they’ve seen the pictures) somehow come up with the $95,000 bond the first-degree murder charge required?

Instead of simply remaining silent, the officer incorrectly explained that Mr. Rak was, indeed, released every evening and Judge Tegeler had to contend with that issue as well.

Meanwhile back at the trial ranch, the defense team and Public Defender Kelli Childress hit the ball out of the park, straight to centerfield no less, when they chose Dr. Douglas Miller as their medical brain expert. The guy was virtually prefect:

·         When prosecutor Alex Bederka tried to demean and cut him off during his expert witness foundation testimony, Miller chewed him up and spit him out in no uncertain terms. It was like watching The Rock slap Justin Bieber around.

·         I’ve never seen anyone so consistently take the shortest distance between two points when explaining complicated medical concepts. And he did it in a way that a remedial sixth-grader could understand it.

·         He never stumbled over his words, he never hesitated before saying something, and, unlike our two attorneys, he addressed the jury directly at every turn. And none of what he said sounded rehearsed.

·         So the rapt jury was putty in his hands. And the icing on the testimony cake was, he spoke just softly enough that the jury had to lean in and slightly strain to hear him. If the good doctor did that on purpose, not only is he a medical expert’s expert, but he’s a fucking genius.

Then, Dr. Miller went on to effectively describe at least five separate ailments that could’ve killed Jeffrey Rak on that fateful day. Finally messaging correctly, Childress consistently tipped that multiple-possible-causes-of-death-ball in with, “But we’ll never know because the coroner never ran those tests and the body’s been cremated.”

It was as close to a Perry Mason moment as you’ll ever see in real life.

So, while the defense had been doing their damndest to lose the jury the prosecution lost on the second day, Dr. Miller brought them screaming back. Whatever the Kane County taxpayer had to come up with to bring in this expert was well worth it when you consider that justice should always prevail.

Next step for Jeff Ward, closing statements! Oh, who am I kidding? I’ll be back in court tomorrow.

To be fair, I wasn’t there for the prosecution’s expert witness, but in 11 journalistic years, I’ve never seen a better communicator than Dr. Miller. Politicians should go to his forensic seminars just to listen to him talk!

Unless the defense has another expert or two up their sleeves, the trial should be moving on to the prosecution and defense rebuttal phases. All I can say is, if I’m Kelli Childress, I’d keep my rebuttal as short as possible so that Dr. Miller’s testimony is as fresh in the Jury’s minds as possible.

Then, my entire closing statement would consist of repeating the good doctor’s testimony verbatim. Why mess with perfection?

Quick Hits’ Ten-Minute Law School

If you’re sitting on the law school fence, here’s what I want you to do! Sit in on a multi-day trial. It doesn’t matter what trial because all lawyers are basically the same person – with the exception of my amazing attorneys Amanda, Brick and Jeff, of course.

I promise, after just two short days of that unique brand of mental torture, you’ll forever disavow the notion of practicing any kind of law whatsoever. At least that’s the effect observing the Daniel Rak murder trial has had on me.

Kane County Judicial Center

For those unfortunate souls who insist upon a legal career, in the vein of Father Guido Sarducci’s Five-Minute University, I’m gonna offer you the keys to the trial kingdom. You see, despite my utter lack of a law degree, my minimal intelligence (readers tell me this), and my surly manner, I could beat 90 percent of Kane County attorneys in a jury trial.

That ain’t bragging, either! It’s a sad commentary on the current situation.

So, buckle your seatbelts because this is gonna be a long one. Here goes!

1. When you’ve made your point move on!

When both sides basically concede the defendant’s father was a blackout, falling down drunk, there’s no need to re-argue that point – for a full hour – two days into the trial.

First, it puts The Bard’s famous line, “Methinks thou doth protest too much,” into play, and second, you lose the jury to the point where they’re more interested in a court security conversation and who’s entering and exiting the courtroom than the trial.

Furthermore, when three separate big screen TVs are displaying a picture of the decedent lying on the floor, even the average juror can figure out he falls down. I wanted to blurt something out to that effect, but I don’t think Judge Tegeler would’ve appreciated that kind of intercession. Or perhaps he would’ve appreciated me moving things along, you never know!

 

2. You don’t have to win every point

Because when you try to win every point, not only does your core message become completely obscured, those fine jury folks start wondering if they’re dealing with two bitchy sixth graders who don’t play well with others and they start tuning you out.

I understand foundation must be built, but I could barely keep track of 1.5 hours of testimony, and that jury will be sitting there for the better part of seven days – or more. Just let it go! It isn’t a boxing match where the points count.

 

3. Don’t object, rebut or impeach unless it’s meaningful

I understand the judicious use of objections can disrupt the other guy’s cadence and set the groundwork for an appeal, but 90 percent of rebutting, impeaching and objecting is  utterly unnecessary. Unless it makes a difference, all it serves to do is highlight the point in question and make it seem much more important than it really is.

So here’s the rule! If what’s about to come out of your mouth does not move, reinforce or reiterate your core message, don’t say it!

 

4. Be prepared!

Even the Boy Scouts understand this basic precept.

You’re on a roll with a witness and the jury’s buying his testimony, but when it’s time to start submitting those exhibits, you discover they’ve been randomly placed in two large boxes. This, of course, leads to a ten-minute courtroom silence while you try to sort them out.

Meanwhile, your second chair, who hasn’t done much but sit there, could’ve prepared it all, but she chose not to bother.

So, what are the jurors thinking? That’s right! “Holy fuck, if he can’t get this right, why should I believe anything he says?”

 

5. Use all the courtroom space!

You may possess the most formidable courtroom presence on the planet, but that power is decidedly diluted if you’re standing behind a table or lectern every time you speak. And that’s especially true if the table is half your height.

So, within the bounds of judicial reason, MOVE AROUND THE COURTROOM during direct and redirect.

That jury is trapped in that box for hours at a time while they’re forced to listen to testimony that’s generally over their heads. If you just stand there, you become part of the courtroom scenery. But if you’re “kinetic,” the jury will follow you as you move, which means they’re far more likely to pay attention.

I’m not saying you should act like a squirrel trying to cross Randall Road at rush hour, but Bruce Springsteen doesn’t just stand there singing “Born to Run,” either.

You need your notes in front you, you say? Bring your legal pad with you.

 

6. Craft a core message and stick to it!

I used to think the late Johnny Cochran was kind of a courtroom clown, but as a professional campaign manager, I’ve come to understand his genius. “If the glove doesn’t fit, you must acquit,” is fucking brilliant.

Think about how the best political slogans caught fire; “Yes we can,” “Hope and change,” “It’s morning again in America,” “It’s the economy, stupid” and “All the way with LBJ.” They’re short, sweet, simple and memorable.

And they all managed to penetrate the average American attention span which is pretty much the equivalent of an off-meds ADHD sixth-grader coming off a three-day sugar and video gaming binge.

Considering the litany of life threatening ailments attributed to Jeffrey Rak, we’re I the defense, my simple message would be, “No one could possibly pinpoint the cause of death 52 hours after the fact.”

And I would say it in various iterations over and over and over again. Look at Donald Trump! If you repeat something often enough people start to believe it.

 

7. The jury is all that matters

While the attorneys frequently engage in a meaningless tit-for-tat battle over meaningless points, I haven’t seen either side look at the jury once since opening statements. Despite the fact they hold Daniel Rak’s life in their hands, the prosecution and defense act as if they don’t exist.

And I don’t get it!

I’m not sayin’ leap into their laps, but why not make eye contact during testimony? Walk by them, smile at them, address them directly. Connect with them whenever possible. When appropriate, let them know a little bit about your own struggle so they can connect with you.

There’s no way they’re going to remember every bit of testimony, but they will remember an attorney who acknowledges their humanity and effort in a court system that generally does neither.

Just like it is with a political campaign, a jury trial is an effort to get those folks to vote in your favor. So, you have to effectively communicate your message to get them to do that and communication comes in many different forms.

All I can tell you is, the candidate with whom voters would most like to have a beer generally wins the race. So why would any rational attorney ignore the jury until closing arguments?

 

Now, let’s go back to the Rak case specifics.

The prosecution’s problem is, not only have they completely failed to connect with the jury, they’ve generally alienated them. All it takes is one holdout for a mistrial and a unanimous verdict is going to be a very high hurdle in this case.

But the defense has a serious problem too. They’re essentially trying to polish a turd. That isn’t a judgement, it’s the truth. The Rak family dysfunctional dynamic makes my fascinating upbringing look like the Brady Bunch with sprinkles.

If the defense loses the jury, something that’s already happening, those folks are going to start thinking, “We’d all be much better off with this kind of white trash in jail.”

So there you have it! And it was a lot less expensive than real law school, too! But since it was almost as long winded as some attorneys are, I’ll quickly conclude by saying I’m officially available as a trial consultant specializing in jury communication.

I’m not kidding!

Quick Hits – July 19, 2017

Rak opening statements

The good news is, I managed to be in court yesterday for the Daniel Rak murder trial opening statements without having to endure a Daily Herald reporter’s verbal and almost physical assault. It’s the small things in life, right?

And BTW, in an effort not to go all Melville on you, I’m going to assume you’ve been keeping up with my coverage of this case. If not, simply enter “Rak” into the blog search box and have at it.

Rak

Daniel Rak

Since the prosecution leads off, KCSAO prosecutor Alex Bederka had the first shot at the jury. On the plus side, he was brief which, when you consider the average American attention span, was a very good thing.

His opening statement was competent, but Bederka couldn’t make eye contact with the jury, he certainly didn’t connect with them and he blasted them with the gory details right out of the gate.

This, of course, begs the question, do you remember who serves on juries? People who aren’t smart enough to get out of jury duty.

So when you hit 13 regular folks, who are nervous about their statutory predicament and faced with holding a young man’s life in their hands, with a full broadside, it’s not a great start. I’m not saying the prosecution can’t recover, but…

When you consider that Public Defender Kelli Childress actually had me – the curmudgeonly 11-year journalist Jeff Ward – teary eyed at one point, that lack of a prosecutorial personal touch does not bode well for Bederka.

In her opening statement, Childress somehow turned the massively dysfunctional Rak family dynamic into a fairy tale. It’s a risk, because, just like it is in politics, provoking a visceral reaction is a lot like a North Korean missile test – you never know where it’s gonna go.

But just when I thought Childress won the case before it started, she went on twice as long as she should have and she presented too much technical medical evidence too soon. It wasn’t a make or break proposition and the defense is still ahead, but it did keep the prosecution in the game.

And Judge Tegeler behaved too!

The bottom line is, Childress can be a formidable courtroom presence, while Bederka seems to struggle with the basics in a case that isn’t a slam dunk.

I will endeavor to get back to courtroom 311 as much as I can, but I’m finding it a bit difficult to keep up with my business coach, Brian Basilico and he comes first.

 

Those charges never shoulda been filed!

The singular sentiment that struck me as I listened to those opening arguments was the eminently clear fact that Daniel Rak should NEVER have been charged with murder. A domestic violence misdemeanor? Maybe!

I realize that opening and closing statements are persuasion and not evidence, but if a mere half of the life-threatening ailments Childress attributed to Jeffrey Rak (the father) are true, the best MD on the planet with the best equipment on the planet couldn’t possibly pinpoint the specific cause of death.

mcmahon

Kane County State’s Attorney Joe McMahon

Then, when you consider the fact the elder Rak didn’t die until 52 hours after the confrontation with his son, I cannot believe any State’s Attorney with any semblance of a conscience would’ve OK’d murder charges.

And first degree murder charges to boot!

C’mon! If you go by the prosecutor’s own opening statement, there clearly was no intent nor premeditation on the part of Daniel Rak. At best, this is an involuntary manslaughter case and even that would be a stretch.

So, what we have here is another case of Kane County State’s Attorney Office malfeasance in which Joe Cullen’s and Joe McMahon’s “Screw it! We’ll Let the judge and jury sort ‘em out” mentality and utter refusal to do the right thing means a man unnecessarily sits in jail while facing the fight of his life.

Meanwhile, Cullen and McMahon are too busy prosecuting the LaQuan McDonald case in Cook County – on the Kane County taxpayers’ dime – to pay much attention.

That all seems fair, doesn’t it?

 

Daily Herald diversity? Nope!

Since I seem to have to set ground rules for how Daily Herald reporters should behave in public, I recently emailed Paddock Publication management to let them know exactly where we stood on the whole Harry Hitzeman thing. That list went like this:

  • Daniel E. Baumann – Chairman Emeritus
  • Douglas K. Ray – Chairman/Publisher
  • Robert Y. Paddock, Jr – Vice Chairman/Executive Vice President
  • Scott T. Stone – President/COO
  • Kent L. Johnson – Senior Vice President
  • Colin M. O’Donnell – Senior Vice President
  • John Lampinen – Senior Vice President
  • Stefanie S. Anderson – Senior Vice President
  • James J. Galetano – Senior Vice President
  • Stuart R. Paddock III – Senior Vice President

First, I’m starting to think this organization has more senior vice presidents than reporters, and second, what did you notice about that list? That’s right! Nine old white guys and one white woman. There isn’t an African-American, an Hispanic, a Muslim, an Indian or as much as an Asian on that list!

Rock

Before you hit me with any insipid, “How to you know they’re all Caucasian” comment, I Googled all their pictures. And from the looks of it, none of ‘em are gay, either, because gay men dress better and they’re in much better shape.

So the next time the DH calls out the City of Elgin for a lack of diversity, there’s just one word that applies – “hypocrite.”