September 27, 2004 - The Chicago Tribune (IL) Small-Time Pot Arrests Huge Hassle For Courts By John Bebow and Jeff Coen

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With the new school year set to begin, 17-year-old Xavier Fernandez figured a $20 bag of weed was the best way to celebrate a move from his mom's place in Bucktown to his grandma's house in Florida.

"He was just having fun with his friends," his mother, Diana Ortega, said, explaining how her son wound up in jail for five hours last month--and in a West Side courtroom last week.

By the letter of the law, he was in serious trouble, facing up to 30 days in jail and a $1,500 fine. But like many of the 20,000 people arrested on misdemeanor marijuana possession charges each year in Chicago, Fernandez figured he could beat it.

"That's why we're here--you've got to show up in court," his mother said Thursday, having flown her son back to Chicago the night before. Certain the case would go away, Fernandez came to court with a packed duffel bag and a return ticket on a 4:30 p.m. flight to Florida.

Police and prosecutors plan to meet this week to consider whether city fines akin to traffic citations might be a better way to penalize pot smokers. Mayor Richard Daley endorsed the idea last week.

The new approach was part of a recent Chicago Police Department study showing the vast majority of misdemeanor marijuana possession charges in the city are dropped because police and prosecutors have bigger problems to tackle. Arresting officers and drug-lab technicians rarely are in court to make the cases. Prosecutors and judges with overwhelming caseloads make quick deals or drop the charges altogether.

A few hours last week with the defendants and attorneys in one of the city's five bustling misdemeanor courts showed that being caught with a joint or two is likely to remain a crime with little consequence no matter what law is on the books.

You're Free, in 3 Languages

Cook County Circuit Court Branch 23 at Grand and Central Avenues is where defendants from parts of Austin, Humboldt Park, Wicker Park and Bucktown all wind up after getting busted for pot possession or any number of other minor crimes, such as theft and fighting.

Eight rows of wooden benches are etched with signs of gangs, love and loyalty: "Mellow-N-Caroline," "Dino-N-Carol," "Thugz." Many church pastors would feel blessed to have pews as full as these shortly before the case call starts at 9 a.m.

Court Clerk Freddie Roder, in a crisp dress shirt and dazzling yellow tie, strolled up to the bench with a stack of files as thick as two cake boxes and dropped them with a thump on the judge's desk.

"This is just the morning [caseload]. Actually, I think it's just half the morning," he joked.

This courtroom is the dominion of Judge Michael Keehan, a burly, 60-year-old former Chicago police detective.

"Is there any reason we shouldn't destroy your brass knuckles?" Keehan asked a woman in a pretty orange top and flowered skirt.

"Nice girl!" he cracked when an unemployed marijuana defendant said he lived off his girlfriend's income.

As often as he barked, though, Keehan tossed files aside as prosecutors dropped charges. "You're free to go," the judge told defendants. For those who didn't speak English, Keehan signaled freedom with signs written in Polish or Spanish.

When it was his turn to defend himself for having enough pot for two joints, Xavier Fernandez made a tactical error. He said he had moved to Florida and drew a judicial scowl. "Did you sign this bond sheet?" the judge thundered, waving a paper. "It says you can't leave the state. Have a seat."

It's not good when Keehan tells you to have a seat. It means you have a few minutes to consult with a public defender. It means prosecutors might actually prosecute you.

On a back bench, Fernandez's mother rolled her eyes.

Of 24 marijuana possession defendants in Keehan's courtroom Thursday, four got the charge dropped, either because arresting officers didn't appear or prosecutors chose not to proceed. Five defendants didn't show. Three took quick slaps on the wrist: orders to attend a drug education class that leads to a case dismissal if completed. Nine defendants got new court dates--at least a couple did so in a cat-and-mouse game after seeing their arresting officers in court. Only three pleaded guilty and got either probation or credit for a day or two served in jail.

It was that kind of lax enforcement that led police Sgt. Thomas Donegan to analyze marijuana cases citywide and call for change. For 2002 and 2003, he found that cases were dropped against four out of five defendants caught with less than 10 grams. Ten grams is enough to roll about seven joints.

The Ticket Tactic

A better approach, Donegan suggested, would be to issue $250 tickets to those caught with 10 grams or less or up to $1,000 for those caught with as much as 30 grams.

Police brass and prosecutors will meet this week to consider the idea, said John Gorman, a spokesman for Cook County State's Atty. Richard Devine.

Among the questions is what would happen once someone contests a pot ticket. Defense attorneys said they could still beat a ticket by demanding to have police at a hearing and asking that a chemist prove the substance is marijuana.

"They never get the chemist," defense attorney Stuart Goldberg said Thursday outside Branch 23.

Bianca Hernandez's trip to Branch 23 last week was about as fast and routine as a trip to the grocery store. It was her second marijuana case of the summer. This one, like the first, was dismissed because the arresting officer did not appear in court. Hernandez makes $6.50 an hour as a file clerk for a landscaper. But she's as pragmatic as any defense attorney in her conclusion that she could avoid a fine just as easily.

"I wouldn't pay," she said. "It's not worth it."

Admitted gang member Adrian Hernandez, 21, at Branch 23 after being arrested for loitering on his block, said he thinks most people will rack up a few tickets without paying and wind up in deeper trouble.

Some patrol officers acknowledge they make marijuana arrests knowing the cases will get thrown out, but do so to please neighborhood groups. Hernandez said that motivation was clear recently when an officer caught him smoking a joint.

"The cop said to me, 'Another [expletive] off the street for a few hours,'" Hernandez said.

Not everybody gets a break. Prosecutors put the squeeze on Aida Rivera last week, forcing her to go to trial in November for having a joint, she said, because she's on probation for fighting with a police officer.

"Don't worry," counseled her fellow pot defendant and Humboldt Park neighbor Omar Trejo. "Look at me. Nothing," Trejo, 24, said of his punishment last week. He took the drug-class option after getting caught with eight small bags of weed.

Back inside, Xavier Fernandez took counsel from a public defender. "Just plead innocent, and they'll let it go," was the advice, Xavier's mother said. It didn't get that far. After a talk between the public defender and a prosecutor who recognized the teen had no criminal record, the case was over, the move to Florida forgiven.

"You're free to go," Keehan told him.

It was 3 p.m., leaving Fernandez time to get to Midway Airport. "I've got school tomorrow," he said.

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