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Jury Picked For Trial of Chicago Man Charged in ’07 Plainfield Murder

The trial of a Chicago man jailed since October 2007 in connection with a Plainfield murder is set to start Thursday morning.

Jury selection for Ricardo Gutierrez’s trial started and finished Wednesday.

Gutierrez, 23, allegedly gunned down Javier Barrios, who was 18 when he was killed.

Barrios, a Romeoville resident, was first shot by his ex-girlfriend, 24-year-old Gabriela Escutia, police said.

Escutia allegedly set up a rendezvous with Barrios in a field on Route 59 near a Meijer service station. Gutierrez reportedly joined her for the meeting.

Escutia has confessed to shooting Barrios as he sat in his car, according to a complaint for a search warrant. After firing once, the complaint said, the gun jammed.

Escutia cleared the gun but Gutierrez took it from her and shot Barrios twice more, the complaint said. Gutierrez told police he tossed the gun away on Interstate 55 after shooting Barrios, the complaint said, but Escutia believed he held on to it and brought it back to his home in Chicago.

Escutia and Gutierrez were captured at the residence in Chicago. A search of the home failed to turn up the handgun.

Escutia had sought and secured an order of protection against Barrios two and a half weeks prior to the killing. In her petition for the order she claimed Barrios pushed her down, slapped her, and broke her car window and a headlight. Escutia also accused Barrios of harassing her and “calling and leaving messages.”

Escutia’s case remains pending. She has a March 8 court date.

Before picking a jury, prosecutors and Gutierrez’s attorney, Jeff Tomczak discussed what witnesses might be called at the trial and pointed out that a detective who investigated the case, Troy Kivisto, is no longer a member of the Plainfield Police Department.

In January 2011, sources identified Kivisto as the off-duty Plainfield cop who barricaded himself in his car in Chicago’s South Loop. The officer reportedly threatened to harm himself but was coaxed out of the car by Chicago police after about two hours.

A Chicago police spokesman said at the time the off-duty officer was “distraught for personal reasons.”

A source said Kivisto was recently arrested outside Will County.

Elmhurst Patch reported that a Troy A. Kivisto, 46, was arrested twice in November. On Nov. 24, he was charged with trespass and possession of liquor on public property after a woman walked into a garage in the 200 block of North Larch and allegedly saw him crouching behind her vehicle, police said. On Nov. 26, he was charged with criminal trespass after police found him passed out in the back yard of a home in the 200 block of North Larch, police said. He was reportedly taken to Elmhurst Memorial Hospital because he was intoxicated.

Jury selection begins for man accused of 2007 Plainfield murder

Ricardo Gutierrez was 18 in 2007 when he was charged with murder for allegedly taking part in the fatal shooting of a Romeoville teenager in Plainfield.

Jury selection began Wednesday in Gutierrez’s trial in Will County court.

Javier Barrios, 18, was shot to death Oct. 28, 2007, behind a gas station near 135th Street and Route 59.

Police say Gutierrez, now 23, and Barrios’ ex-girlfriend, Gabriela Escutia, are responsible. The two were arrested on first-degree murder charges two days after the shooting.

Escutia’s case has not yet gone to trial.

Gutierrez and Escutia, 24, remain in the Will County Jail in lieu of $5 million bond. At the time of the shooting, the two were allegedly dating, authorities said.

Witnesses said they heard shots ring out in the late afternoon near the gas station, saw a man stagger into a field south of the station and collapse, and watched his assailants drive away.

Barrios was pronounced dead at the scene.

Earlier that month, Escutia filed a petition for an order of protection against Barrios, a record that had led detectives to her during their investigation of the shooting, police said.

Mom on Trial in Abuse Case

A Will County judge will decide whether a Mokena mom crossed the line when she beat her son with a belt last spring after he got in trouble at school.

Physical punishment by parents isn’t illegal, prosecutors said, but the beating Korie M. Kellogg, 30, gave the 10-year-old son she had with former Chicago Bull Eddy Curry was abusive.

Kellogg’s attorney, Jeff Tomczak, argued it was simply a parent disciplining her child.

A bench trial on Kellogg’s aggravated battery charge began Thursday.

Kellogg was arrested after she brought the boy to Silver Cross Hospital in New Lenox on April 4, the day after the beating, to treat swelling of bruises on his back, leg and face.

A hospital staff member called Mokena police after they saw the boy’s injuries.

After the state rested its case Thursday afternoon, Judge Daniel Rozak said he would consider Tomczak’s motion for a verdict of not guilty and issue his decision on Jan. 18.

Tomczak said Kellogg’s physical punishment wasn’t given in anger or to be malicious.

“She tells him why, she inflicts her punishment, and she tells him she loves him,” Tomczak said, pointing out the boy testified his mother had never hit him in anger.

“The state is not arguing that it’s unreasonable for parents to put their hands on their children ever,” said Assistant State’s Attorney Adam Capelli. “The state believes (punishment) is up to each individual parent. This does rise to the level of unreasonable.”

Under questioning by Tomczak, the boy said he was not afraid of his mom, and that he knows she loves him.

“You knew why your mom gave you that whuppin’, didn’t you?” Tomczak asked the boy.

“Yes,” he said.

“And you knew your mom did that because she cared about you?” Tomczak asked.

“Yes,” he said.

Mokena police Detective Jeff Kowalczyk testified that Kellogg told him she had her son remove his clothing before she hit him with the belt 10 to 15 times as a punishment for behavior problems at school.

She was whipping his back and buttocks, but the boy was hit in the face as well because he was “flailing around.”

She told the detective that, after she hit him, she laid down with him and told him she loved him, Kowalczyk said.

Preparation helps calm nerves

SPRINGFIELD — Jeffery J. Tomczak sat alone, steadily paging through a stack of documents.

Portraits of former chief justices silently observed him running through notes and case history at a long table in the attorney’s room — just outside the Illinois Supreme Court chambers.

Soon, the owner of the Law Offices of Jeff Tomczak in Joliet would step to the podium and deliver the first high court oral argument of his 27-year career, representing a defendant in a DUI case. His wife, daughters and parents all came to view this career highlight.

The former Will County state’s attorney began speaking, barely finishing the opening sentence of his prepared remarks before the chief justice interrupted him.

In his rush to launch into the legal debate, Tomczak forgot to identify himself to the court.

“I don’t usually miss saying my name very often,” he said later, noting his prior political experience ingrained that trait in him. “My friends will give me a hard time about that one.”

The pressure and tension in developing and arguing a Supreme Court case can often strain one’s nerves, veteran and rookie high court arguers agree.

But preparedness — investing significant time in developing the appeal petition, writing and editing the brief and honing an oral argument — remains the key to surviving and succeeding, they said.

“The more one prepares, the more one realizes that nerves and anxiety are all part of the process,” said David Iskowich, the supervising attorney for the Criminal Appeals Division of the Illinois attorney general’s office. “But preparation does a lot to remedy that.”

The petition

Any case in the high court begins with a petition for leave to appeal — the roughly 20-page document that attempts to persuade the court to hear the case.

Crafting a PLA always poses a challenge, as it requires distilling an often painstakingly detailed case record down to a few crucial points, said Robert G. Black, a partner at the Law Offices of Robert G. Black P.C. in Naperville.

Knowing the court only takes about 4 percent of the petitions it receives, he said, means the appeal must clearly show why the case merits attention.

“You want to find that hook that will interest the Supreme Court in taking the case,” said Black, who began arguing cases before the high court in the early 1990s.

Solicitor General Michael A. Scodro, who oversees civil and criminal appeals for the state, said his office spends substantial time contemplating the impact of lower court decisions.

Before deciding to appeal to the high court, he said, they also consider what rules of law they could ask the court to create or modify.

“We devote significant thought to the contours of the legal rule we’re recommending,” he said, “and how it fits in with existing legal doctrine.”

Key points of focus, Black said, usually include conflicts in rulings between appellate districts or an evolving area of law that attorneys need guidance on.

“What you’re trying to do is not so much tell the Supreme Court why you should win your case,” he said, “it’s more why this case should be taken.”

The briefs

Once the court takes a case, intense work begins in developing a brief of 50 pages or less.

Before putting a single word down on paper, though, attorneys said they first must review the entire case record, learning it inside and out.

J. Timothy Eaton, a partner at Shefsky & Froelich Ltd., said studying the facts of a case sometimes takes weeks or months. Once, he spent a year reviewing a case with three years of trial court proceedings and hundreds of thousands of pages in the record.

“You have to understand the facts before you can appreciate the law,” said Eaton, who argued four cases before the high court in the past year.

Michael T. Reagan, owner of the Law Offices of Michael T. Reagan in Ottawa, said two key processes occur between the briefing stages at the appellate and Supreme Court levels.

For the high court, attorneys must first pare down the issues presented in a case to only the most critical ones — a sometimes difficult process when working with trial attorneys or clients who want to raise any and all questions.

Constructing a solid brief also requires figuring out how the present case fits in with the rest of case law. Attorneys must propose a solution that blends with existing legal precedent, he said.

“That’s a powerful aspect of persuasion, crafting a resolution to the case which would fit the best with the rest of the law,” said Reagan, who appears at the court about once a year, first arguing in 1986.

Iskowich said drafting a brief requires marshaling the best facts from the record, then applying existing law to them. But it also demands serious thought about what resolution to seek in a case.

“It’s more of an art than a science,” he said, “trying to gauge the mood of the court, where they might be wanting to develop the law and in what direction.”

Scodro said once an attorney grasps the “universe of the case” and develops a strategic plan highlighting the strongest arguments and anticipating weaknesses, an outline develops.

Writing usually occurs over several days, he said, with close attention paid to each paragraph and sentence. Once drafted, the brief undergoes an intense review process with one or more attorneys editing for style, but also revising or restructuring arguments.

“We make sure it’s a polished product without grammatical errors, but on top of that, making sure it’s put concisely and persuasively,” he said. “You don’t want to give the court more pages than it needs.”

The argument

Attorneys with frequent high court experience said oral arguments, the final stage of the process, tend not to be something they repeatedly rehearse in a mirror.

It does, however, require thorough preparation involving conversations with other attorneys and, in some offices, exercises that resemble moot court proceedings.

Michael J. Pelletier, the state appellate defender, said all attorneys in his office prepare their arguments with oversight from two supervisors who help distill the brief down to a few crucial points.

Attorneys then deliver their argument to staff members who interrupt with questions, simulating the experience that occurs in front of the seven-justice panel.

“No matter how many years of experience you have, I think it’s dangerous to just sort of wing it,” said Pelletier, who argued nine high court cases before taking the top spot in his office. “I’ve seen some individuals go up with no notes. I don’t know if that’s cocky, but I can’t imagine doing it.”

Attorneys tend to prepare remarks to fill their full 20 minutes of time, but said they hope to only need a few key points. The best oral arguments, they said, feature frequent questions from the justices.

Rather than seeing interruptions to their argument as a potential stumbling block, high court veterans said an active session with the justices offers a view into their thought process.

“If you’re lucky, the court takes over the argument and begins asking about the things which are important to them,” Reagan said. “That’s something a good advocate wants to happen.”

As a newcomer to oral arguments, Tomczak said he found anticipating potential questions to be the toughest part of preparation.

“You’ve got really, really, really smart judges asking really hard questions,” he said. “It’s your job not only to figure out what the questions are going to be, but coming up with a good, honest, intellectual answer.”

Scodro said he additionally views the back-and-forth as a chance to be a resource for the court. The arguing attorney knows the case better than anybody, he said, and this marks the final shot to share that knowledge.

“Ultimately, what you’d like to hear are questions that go to what the justices think are the very weakest points in your arguments,” he said. “That can be very challenging when you’re up there, but at the end of the day, you’d prefer to have the opportunity to address those concerns.”

While no way exists to anticipate every question from the court, attorneys said, discussions with sharp-minded colleagues can help.

“Chances are, if you have people that are new to the case look at the briefs, they’re going to come up with some thoughts or questions that you might expect the judges would ask,” Eaton said.

The opinion

Eventually, the case boils down to one important, final document.

The court issues rulings about 15 times a year and attorneys learn just a few days in advance when their case will be decided.

While waiting months for a conclusion sometimes pushes the case out of mind, attorneys said the sense of anxiousness quickly returns on opinion release day.

“I read the first paragraph, then jump to the last paragraph,” Black said. “Then I go back and look at the guts and see how they got there.”

The Tomczak Law Group