By Jack Clark
Derrick Smith had several drug convictions under his belt when he stepped before the bench in a New York City courtroom two days before Halloween. Most of these were for misdemeanor marijuana sales, but he’d also been arrested for selling crack cocaine. He was still on probation from a 1995 felony conviction.
The prosecution made him an offer on his latest charge, another felony for selling crack in the East Village–three to six years in prison. Smith refused to accept it. “I’m 19 years old, your honor,” he shouted at the judge as his attorney tried to calm him down. “That’s terrible,” he sobbed. “That’s terrible.”
The judge warned him that the plea bargain was good “for today only” and reminded him of the stiffer sentence he might face at a later date–up to 25 years in prison. Smith still refused to accept the deal.
As he was being led to a holding cell, the beginning of a trip back to Rikers Island, Smith called out to his mother sitting in the spectators’ section, “Mom, I can’t do it.” His mother mouthed back, “It’ll be all right.” But for Derrick Smith nothing would ever be right again. He broke free from his guards, jumped on a radiator, and dove out an open window. He fell 16 stories.
“I thought his mother was going to have a nervous breakdown,” a witness told reporters. “She lost her mind,” another said. “She was shouting, ‘Oh, my God! My son! My son!'”
“There was no shout, no scream, no nothing,” another witness recalled. Smith landed on a parked van, bounced to the ground, and died. The New York Times called the suicide “a jarring interruption to the daily routine.”
If Smith was trying to deliver a message with his final act, this seems to be it: The war on drugs is not fair.
If it were fair, some of my friends–and probably yours too–would find themselves standing in front of judges now and then. But the law has little interest in middle-class druggies. The Derrick Smiths of the world make the game so easy. Their open style of drug dealing gives the cops a reasonable excuse for unequal enforcement of the law.
The police must know they’ll never stop the trade or consumption of illegal drugs. We all know that. The drug war has become a foolish national pastime with the cops stuck in the middle between the lawmakers and the lawbreakers. One of their greatest incentives to play the game came during the Reagan era, with the passage of the Omnibus Crime Bill of 1984: the forfeiture laws.
Forfeiture legislation allows police to seize property and other assets, including cash and bank accounts, and then to share in the proceeds. They only have to decide that the assets are tainted by money gained from illegal activities. Houses, boats, cars, farms, airplanes–you name it, they’ve seized it. In 1996 the Justice Department alone bestowed $163 million in confiscated assets on state and local police. If the owner wants his property back, he has to go to court and prove that the police are wrong. This isn’t what we usually think of as due process.
But when it comes to the war on drugs, the reality of the forfeiture laws is even worse than you might imagine, judging from Mike Gray’s new book, Drug Crazy (Random House). “Eighty percent of the people from whom assets are seized are never even charged with a crime,” he writes. “They just lose their possessions.”
Gray tells of a 1992 raid led by the Los Angeles County sheriff’s office on a ranch in the mountains above Malibu. Don Scott, the millionaire owner of the place, was shot to death when he came out of his bedroom with a gun in his hand after police kicked down his front door. Raiders never found a trace of drugs in the house or anywhere on the 200-acre ranch. It then turned out that the ranch was actually located in neighboring Ventura County. When the district attorney there investigated, he found a map of the ranch in the Los Angeles County sheriff’s file. An attached note read “80 acres sold for $800,000 in 1991 in same area.” The district attorney told a reporter from the Los Angeles Times: “Clearly one of the primary purposes [of the raid] was a land grab by the sheriff’s department.”
The police go after small potatoes too. Gray writes about some Florida cops who decided to search motorists stopped for traffic violations on I-95: “If one of the people in the car was carrying more than a hundred dollars in cash, it was assumed to be drug money. Of those people from whom the police confiscated money but did not arrest, 90 percent were black or Hispanic.”
He finds a list that shows the Washington, D.C., police have seized as little as $5. “These numbers hint at petty shakedowns,” Gray writes, “and that bodes ill for the long haul. Try to picture this scene through the eyes of the teenager with a few bucks in his pocket–quite possibly earned through honest work–who must constantly be on the lookout for the king’s men or lose it all. It would be tough to come up with a better system for teaching hatred of the law.”
Gray, a former Chicagoan who now lives in Los Angeles, produced the 1971 documentary The Murder of Fred Hampton, about the infamous state’s attorney’s raid on a west-side apartment that resulted in the deaths of Black Panthers Fred Hampton and Mark Clark. He returns to the west side in Drug Crazy to introduce us to an undercover cop who makes a small-time drug bust in front of a public grammar school and then uses the information he gleans to go after bigger fish. The cop ends up in a shoot-out with a drug deliveryman for the Gangster Disciples. He confiscates $53,000, 17 pounds of cocaine, and a ledger book. The book shows that this one deliveryman has taken in $451,000 in just ten days.
Instead of being promoted or patted on the back for his efforts, the cop winds up back in uniform with a warning from his boss never to do this sort of thing again. Gray theorizes that this might be Chicago’s way of keeping its cops on the straight and narrow. “This is a city that understands corruption,” he writes, “and they have a biblical fix on it: ‘Lead us not into temptation.’ All ongoing narcotics investigations are handled by the narcotics squad, and the narcotics squad itself is focused entirely on small-time buy-bust arrests. There’s almost zero chance of anybody in the lower ranks stumbling into a roomful of cash or a truckload of coke. And any serious attempt to follow the trail upward is discouraged.”
“You can’t really nail it down,” the former undercover cop tells Gray, “but a lot of guys are thinking somebody’s making bread somewhere.”
Gray takes us to night drug court at 26th and California, where the small-time buy-bust arrests are adjudicated in eight courtrooms set up to handle the overflow business. He talks to a public defender named Tim Lohraff who estimates he’s handled 1,000 drug cases but has had only 15 to 20 white clients. He likes to taunt the state’s attorney: “No white people sell or use drugs?”
If you listen closely, you can hear thousands of Derrick Smiths sitting in the dock at 26th and California chanting: “It’s not fair.”
U.S. Supreme Court justice Potter Stewart once said, “Fairness is what justice really is.” Lohraff says, “We’re not producing justice here. We’re manufacturing revolutionaries.”
The subtitle of Gray’s book is “How We Got Into This Mess and How We Can Get Out.” He makes a solid case for regulated narcotics sales, and he shows that this system has worked in the past both here and abroad. But the more you read, the more it seems there’s no way out. We’ve already gone too far. It’s not just the drug dealers who are coming out ahead. The government’s soldiers are well paid too. Cops to prison guards, judges to janitors, trial clerks to public defenders, court reporters to prosecutors–they’re all part of a vast economy built around the drug war.
It costs several million a year, mostly in salaries and fringe benefits, just to keep Chicago’s night drug court operating. And those aren’t the only courtrooms in town where drug cases are heard. For Americans far removed from the battlegrounds of the inner cities, the economic benefits might be the only side of the drug war they see. Name a town in downstate Illinois and chances are if it doesn’t already have a prison it’s hoping to have one built. A good, solid prison is recession proof. The price of grain doesn’t affect it. A flood won’t destroy it. The increase in the U.S. prison population from 300,000 to nearly 2,000,000 in the last 27 years might seem like a massive national failure, but it certainly shows the success of our thriving prison industry.
It doesn’t seem fair that black kids from Chicago have to help the downstate economy. But as we’ve been telling whining children for generations: Whoever said life was fair?
Bureau County straddles Interstate 80, a bit west of LaSalle-Peru in the lush farmland of the Illinois River valley. It doesn’t look like a major outpost of the war on drugs, but it is.
The story is told in court files and police reports, and in the pages of the local newspaper, the Bureau County Republican, which has covered the area since 1847. It begins in September 1994, when a Ryder rental truck was stopped for speeding on Interstate 80. According to Illinois state trooper John Balma, the eastbound truck was going seven miles per hour over the posted limit.
An ex-trucker, Balma may have also spotted a light load. He was the main reason the Republican could brag in February 1995, “For two years in a row, Bureau County has been the site of Illinois’ largest cocaine seizures….As a matter of fact, in 1994 alone, Bureau County drug busts made up 61.2 percent of all cocaine seized in the state and 36.4 percent of all cannabis.”
With the Ryder truck, and the two men inside, Balma hit pay dirt. According to the Republican, “Balma said the men were extremely nervous when he first stopped the truck and became increasingly nervous as he asked questions.” Balma asked for permission to search the vehicle. The driver, Pedro E. Then, 43, of Elizabeth, New Jersey, agreed and signed a consent form.
In the cargo area, Balma found two chairs, a table, a dresser, a television, nine mattresses and box springs, a bed frame, 19 empty boxes, and two cartons filled with 147 pounds of cocaine.
Then told police he’d rented the truck in Los Angeles and driven to a local warehouse where he’d stored his possessions. The police report tells the rest of Then’s story: “At the storage facility, while he was loading his things…he was approached by two (2) unknown Hispanic/Males who drove up in a pickup truck which contained cardboard boxes. According to THEN, the two (2) Hispanics offered to help him load his truck. They also offered the boxes…in case he would need them in the future. THEN stated that all the boxes that were found in the RYDER truck…came from the two (2) Hispanics.”
Arrested along with Then was Orlando A. Fernandez, 39. This wasn’t the first time Then and Fernandez had been stopped on I-80 in Illinois. The Republican noted the pair had been pulled over a month before in Henry County, once again going east in a rental truck; Fernandez was charged with speeding. “The trooper who stopped them didn’t search for drugs in the truck since he was called away to a serious accident.”
If you’re planning a career in drug trafficking, you might pick up a few tips from Fernandez. After his arrest, he told police he didn’t speak or understand English. When a Spanish-language interpreter was provided, the police report said, “FERNANDEZ requested an attorney and refused to make a statement before he was even advised of what he was being charged with.”
All Fernandez gave police was a New Mexico driver’s license that listed his name along with a Las Cruces address. When checked, the address proved not to exist. Fernandez had $2,348 in his pockets when arrested. Pedro Then had 16 bucks.
Both men were charged with the Super Class X felony of controlled substance trafficking, which carries a potential sentence of 30 to 120 years in prison. Their cash would later be seized under the forfeiture provisions. But that $2,348 wasn’t the only money Bureau County would get from Fernandez.
A little more than two months later, on the morning of December 9, 1994, Trooper Balma pulled over an eastbound Freightliner on Interstate 80. According to Balma, the blue and silver tractor-trailer rig, with “Star Produce” painted on its side, was traveling eight miles per hour over the posted speed limit of 55.
Once again, a New Jersey man was behind the wheel–this time Edwin Ortiz, 37, of Linden. And again, according to Balma, the trucker appeared to be nervous. Balma issued a ticket for speeding, then asked for permission to search the truck. Ortiz signed a consent form.
The trailer was about half full of oranges. Balma climbed over the cases of oranges to the very front of the trailer, where he found a newly installed sheet of diamond plate. Hidden in a secret compartment behind the metal plate was 238.3 pounds of cocaine.
Ortiz was placed under arrest but denied any knowledge of the cocaine. He also told police he was traveling with another truck, which had broken down in Iowa.
Later that evening, the second semi arrived in Bureau County. Behind the wheel was Juan F. Colon, 45, of Carteret, New Jersey. In a secret compartment in the front of the trailer, police found 685 pounds of cocaine. Colon followed Ortiz to jail.
The second truck was leased to Rocky Road Trucking. According to police, both trucks were owned by Daniel Estrella, also of New Jersey. Police found an old repair bill in Colon’s truck made out to Rocky Road Trucking. The bill had been signed by Pedro Then.
In Ortiz’s truck, police found a repair bill with Orlando Fernandez’s name on it. According to the bill, not quite a year before Fernandez had paid $3,488.90 cash for repairs on the truck Colon was driving.
According to a report by police inspector J.M. Girton, on the morning after his arrest Colon asked for a cigarette. Girton took him out of the cell to smoke, and Colon–who had already said he’d recruited Ortiz as a driver–then admitted to making three previous trips for Estrella, all from California to New Jersey. On one of the trips, he said, he had traveled with Estrella himself.
“Did you know you were hauling drugs?” Girton asked.
“Well, I never saw the drugs,” Girton’s report quotes Colon. “But I guess I knew. I was making too good of money for what we were hauling. I don’t think the fruit made any money.”
“But you knew it had to be drugs you were hauling?”
“Yes,” Colon reportedly replied. “But I never saw drugs.”
Colon agreed to cooperate with the police. In return he asked for a police promise to protect his family from any retaliation by Estrella. “DEA had agreed to protect COLON’s family and needed to start paperwork on COLON and his family,” the police report said.
Instead of driving the rig to New Jersey in an attempt to trap others in the drug ring, the police called in the air force. A jet was flown to the Rockford airport, and the truck, once again loaded with oranges and cocaine, was driven to meet it. But the truck was too big for the jet. So instead of going to New Jersey, it was driven back to LaSalle, and Colon was led back to his cell. Eventually, he was sentenced to 60 years.
Edwin Ortiz, who continued to declare his innocence, had a bond reduction hearing on January 13, 1995.
“He would never, I mean never, stoop so low as to ever go near or touch drugs,” his daughter Jessica, 14, and son Edwin Jr., 13, wrote the court. “So please help my father. We really do miss him a lot and would love to have him home with us right now.”
The motion was granted: bail was reduced from $5 million to $3 million. Ortiz remained in jail.
“It’s easier to defend guilty men than innocent men,” says his defense attorney, Chicago lawyer Paul Bradley. “If you lose, at least there’s the sense that the guy did the crime. The worst feeling in the world is when you know in your gut or feel in your gut that the guy is innocent and you lose. It’s the worst pressure there is, because you are constantly second-guessing yourself. And you just have a sense that this is terribly, terribly unfair.”
In March Ortiz was convicted. Bradley had this to say at his sentencing hearing: “We have a microcosm of the effect of these drug laws with these draconian sentences right here in Bureau County. Apparently, through the evidence that I saw in this case, Mr. Danny Estrella hired Mr. Then and Mr. Fernandez to bring some drugs to New Jersey for him. And they got arrested right here in Bureau County….Mr. Estrella then apparently recruited Juan Colon, who also employed as a…second driver Mr. Ortiz. And Mr. Estrella had his trucks filled with more cocaine to be brought to New Jersey. So the deterrence isn’t there because they never get to the top. It’s just the guy driving the truck who gets stuck…
“Mr. Edwin Ortiz, and I don’t think there’s any dispute about this…has been a useful citizen for 38 years….The time that he will serve on this conviction is simply a chunk out of his life. That is tragic.”
“He’s a wonderful brother and a wonderful father to his children,” testified Ortiz’s older brother, Edward. “He’s a good son. He’s hardworking. And he’s very attached to his family, and he looks for the family all the time.”
“I think it is political posturing when they get up and pass these sentences of 30 years minimum and 120 years maximum,” Bradley told the court. “We are now in the logical absurdity in this state, for Mr. Ortiz is subject to a minimum sentence ten years more than if he’d committed a murder…a sentence 24 years longer than if he’d taken a gun or automatic weapon and gone out and robbed somebody or a business…a sentence 24 years greater than if he’d violated a woman by rape. And, your honor, your hands are tied. You cannot do anything under 30 years by what the legislature has said in this case. There is no deterrence in this case. There is nothing to restore Mr. Ortiz to useful citizenship. He’s been a useful citizen and whenever he is released he will continue to be. I ask the court, I beseech the court, given the tying of your hands that’s been done by the legislature, to consider Mr. Ortiz and his background–which could not be any better–and impose the minimum sentence in this case.”
Judge James J. Wimbiscus, who had found Ortiz guilty in a bench trial, sentenced him to 35 years in prison, five years over the minimum. Ortiz was led back to jail still proclaiming his innocence.
Pedro Then told a Bureau County jury the same story he’d told police. Two unknown men in a pickup truck had approached him in Los Angeles. Not only had they helped him load his truck, but they’d thrown in 19 empty boxes for good measure. The jury took just over an hour to come back with a guilty verdict.
At his sentencing hearing, Then once again couldn’t keep his mouth shut. He told Judge Terence Madsen that he praised God the drugs he was hauling never got to their intended destination. “Thank you, my Lord,” he said.
If Then thought this statement might help him win a lighter sentence, he was sadly mistaken. Judge Madsen said, “I am particularly troubled by Mr. Then praising the deity for being stopped in the truck hauling millions of dollars of drugs headed in the direction of his children and hundreds of thousands of victims, and a million victims indirectly.” He sentenced Then to 95 years in prison.
Bureau County state’s attorney Marc Bernabei told the Republican: “We are very, very pleased in the sentence of 95 years, which I believe is the longest in Illinois in a drug case. This will send a very strong message across the country that people who bring these amounts of drugs into the county and state will be dealt with severely.”
Then’s defense attorney, public defender Michael Henneberry, told the newspaper, “Pedro is not a major player. He’s a confused and lonely witness, and his testimony is not the kind that comes from that kind of player.”
You might be wondering what happened to the fourth man, Orlando Fernandez: the man who couldn’t speak or understand a word of English, the man who gave police a driver’s license with a phony address?
The Bureau County Republican tells the story. “New Mexico man pays largest criminal fine in county” read a front-page headline on April 11, 1995. The story explained that Fernandez had agreed to plead guilty to a reduced charge. Judge Wimbiscus then fined him $140,000 and sentenced him to 12 years in prison. According to the Illinois Department of Corrections, his tentative release date is now March 3 of next year.
The $140,000 “is believed to be the largest criminal fine ordered and collected in the 13th Judicial Circuit history and possibly for the entire state,” Marc Bernabei told the Republican. “In addition to sentences of imprisonment, it is important to obtain and collect fines and forfeitures against drug dealers when possible. Financial penalties seek to attack the profit of illegal drug activity.”
“Forfeiture proceedings have been instituted against the two semis worth $110,000, $561 in cash from Ortiz and $260 in cash from Colon,” the Republican reported in March 1995. “The loads of oranges hauled in the trailer have also been sold for $4,688.”
Fernandez, who was represented by Justine Levine of New York City, paid the $140,000 and got 83 years less than Pedro Then. If you divide his fine by 83 years, it comes to just under $1,700 a year, a little more than $4.50 a day. It seems more than a fair price for freedom, and I’m sure thousands of prisoners and their families would gladly pay that if they could only make the same deal.
Of course, someone who pleads guilty is almost always going to get a lighter sentence than someone found guilty after forcing the state through an expensive and unpredictable trial. Derrick Smith must have known that. That’s why he was so despondent after turning down the plea bargain in that New York City courtroom. That’s why the open window looked so inviting.
There’s little doubt that the four men arrested in Bureau County were members, knowingly or not, of the same drug ring. The three who went to trial all claimed to be unwitting mules. Juan Colon admitted to police that he suspected drugs were his real cargo. But Edwin Ortiz proclaimed his innocence throughout the ordeal.
There’s not much evidence against Orlando Fernandez. The only thing he ever told police was “I want a lawyer.” And he said that through a Spanish interpreter. But Paul Bradley, Ortiz’s defense attorney, says evidence suggests Fernandez is more culpable than Colon, Ortiz, or Pedro Then: “There were documents that showed Fernandez had access to the truck that Ortiz was driving. He paid $3,500 cash for repairs on the truck that Colon was driving. He’s obviously much more than just a once-in-a-while hired driver.”
Fernandez had made at least one previous trip through Illinois, and that time he was the one behind the wheel; Then was the passenger. When arrested, Fernandez was carrying $2,348 in cash; Then had $16. And for a man who claimed to speak no English, Fernandez sure had the U.S. legal system down cold. He knew about his right to remain silent. He knew about his right to legal counsel. And he did exactly what every criminal defense attorney hopes his client will do when arrested: He kept his mouth shut.
Juan Colon had once received some different legal advice. The day after his arrest he told police inspector Girton, “This lawyer told me that if someone ever gets you in trouble the best thing to do is to tell the truth about your involvement.” Which is exactly what he did.
If you need evidence that Colon, Then, and Ortiz were probably mules and nothing more, look no further than their obvious lack of legal smarts; look no further than their lack of 140 grand.
Not quite a month before Fernandez’s plea bargain, a story about a tougher sentencing provision made the front page of the Republican: “Persons who transport large amounts of marijuana in Illinois will face higher fines and far longer prison terms under a bill that unanimously passed the House Judiciary Committee last week, 14-0.” The bill would make the new penalty 12 to 60 years. The sentence at the time of the story was 6 to 14 years.
“Rep. Frank Mautino of Spring Valley, the sponsor of the legislation…said Bureau County State’s Attorney Marc Bernabei requested the legislation after a highly publicized case in Bureau County. ‘Some big-wheeling drug dealer was caught hauling 400 pounds of marijuana through Bureau County and his bail was $75,000,’ added Mautino. ‘His friends came down in a black stretch limousine, and they paid $75,000 in one hundred dollar bills.’
“The Democratic legislator was referring to Vartkes J. Keshishian, 39, of Elmhurst, N.Y., who was charged with the Super Class 2 felony of cannabis trafficking. He was stopped by Trooper John Balma…five miles west of Princeton on Interstate 80 for driving 43 miles per hour, which is two miles below the minimum speed limit.
“Balma later found 441.5 pounds of marijuana with an estimated street value of $823,000 inside the cargo area of the Ryder rental truck.”
Two weeks after that story, the black limo returned to the Bureau County courthouse, at least figuratively, to make an even larger drop-off. But this time its arrival, with another bagful of money, was treated as good news. Another front-page story explained, “A New York man on Monday was fined $100,000 after pleading guilty to the Super Class 2 felony of cannabis trafficking.
“‘The $100,000 fine is the largest fine ordered and collected in any criminal case in the history of the 13th Judicial Circuit and is one of the largest fines, if not the largest, ever ordered and collected in state history,’ reports Bureau County State’s Attorney Marc Bernabei.
“Vartkes J. Keshishian…was sentenced by Circuit Judge Terence Madsen to six years in the Illinois Department of Corrections.” The sentence was the minimum under law at the time of Keshishian’s arrest.
So after campaigning for a law to get stiffer sentences for the likes of Keshishian, Bernabei agrees to a $100,000 fine and the minimum sentence under the old law.
Around the same time, two women from Washington State were fined $100,000, and one was sentenced to six years in prison for hauling 837 pounds of marijuana.
The Republican reported that the $340,000 in fines levied in the three cases would be distributed as follows: $170,310 to the Bureau County General Fund, $127,270 to the District 17 Illinois State Police Drug Task Force, and $42,420 to the Illinois Youth Drug Abuse Prevention Fund.
“The message I get from this,” Paul Bradley says, “is if you’re high enough up in the organization that they’ll come up with money, you’ll get a lesser sentence. That means that the fodder for the war on drugs is the poor schmucks like Ortiz, Colon, and Then…
“It’s justice for sale. It’s even more diabolical than that. Because it means that the people who are connected or have some value to the drug organization will get the lesser sentence because they’re the only ones the organization is going to spend that money on. Whereas Ortiz, Then, and Colon are throwaway people. They’re of no value to the organization. They’re replaceable by some other poor schmuck who’s out of work.
“It’s the same kind of thing that goes on in federal court here all the time. Some poor schmuck gets caught who has nobody to rat on, and then he gets the full force of these crazy drug sentences.”
Appealing Ortiz’s conviction to the Illinois Appellate Court, Bradley wrote in his brief: “If the prosecution attempted to argue that a bus driver or a taxicab driver could be convicted of possession of narcotics because a passenger had drugs in his luggage, his argument would fall on deaf ears. Any court would point out that the driver’s job is to transport others and the law does not require the driver to search the passengers and their luggage in order to protect himself from a drug conviction.
“The only difference…is that a truck driver carries only cargo rather than passengers with luggage. In both cases, the driver is transporting goods belonging to someone else. The defendant did not build the secret panel. The defendant did not load the truck. He did what any driver for hire would do. After the trailer was loaded, he closed the doors and started driving.”
Bradley quotes from United States v. Resio-Trejo, in which the Fifth Circuit Court of Appeals wrote: “In secret compartment cases, we have generally stated that the knowledge element may not be inferred solely from the defendant’s control of the vehicle in which the contraband is hidden because ‘there is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise.'”
Bradley argues that in such cases “the evidence must be sufficient to establish to a reasonable and moral certainty that the defendant committed the offense charged.” He cites an earlier state appellate court case, People v. Weeks. “The Weeks Court went on to say that such evidence must be inconsistent with any reasonable hypothesis of defendant’s innocence…
“The theory of innocence which is consistent with all the evidence in this case is both obvious and reasonable,” Bradley writes. “Daniel Estrella is the head of, or at least part of, a drug smuggling operation….Estrella has had hidden compartments installed in the trailers of his trucks and smuggles cocaine from California to New Jersey in trucks loaded with produce. As part of his operation, he hires drivers who need work to drive the trucks to New Jersey. Estrella does not tell the drivers about the contraband and is confident they will not see the compartment in the front of the loaded trailer. Mr. Ortiz, as one of the drivers, was an unwitting ‘mule’ for the Estrella operation.
“This theory of innocence should have been adopted by the trial court. It is clear from a review of the evidence and from the Court’s own statements that defendant was not proved guilty beyond a reasonable doubt. There simply was no evidence that defendant knowingly possessed the illegal drugs.
“The Court’s reasons for finding defendant guilty are based on innuendo and suspicion. Defendant’s conviction must be reversed.”
During oral arguments, Bradley recalls, “The state got up there and said you would not entrust this amount of dope to a guy who didn’t know it was there. I got up and argued just the contrary. That’s who you want driving. You don’t want a guy who’s gonna take off with the whole shipment or go back there and fill up a couple of coffee cans.”
On December 12, 1995, seven months after Edwin Ortiz was sentenced to 35 years in prison, the appellate court agreed: “We believe that based upon the totality of the evidence, no rational trier of fact could have found the defendant possessed knowledge of the existence of drugs beyond a reasonable doubt.” By a vote of two to one, the conviction was overturned.
Unfortunately for Ortiz, already behind bars for over a year, a twist of fate would keep him in prison.
On December 7, five days before the appellate court officially issued its ruling, presiding justice Allan Stouder, one of the two judges voting for Ortiz, died after a quadruple bypass operation. Judge Stouder, who had been blinded in an industrial accident while working his way through law school in 1946, was the senior judge on the Illinois Appellate Court, having served since 1964.
After his death, the state asked for a rehearing with a new judge taking Stouder’s place: “Since Justice Stouder passed away, he could not have participated in this court’s decision on December 12, 1995, regardless of the fact that Justice Stouder and the majority of the panel may have agreed upon the order prior to December 12, 1995.”
In July 1996, the Illinois Supreme Court refused the state’s request for a rehearing, and Edwin Ortiz walked out of prison in Pontiac and finished his trip to New Jersey. But once again life wasn’t quite fair.
In 1997 a civil case, Proctor v. Upjohn, with a similar twist–a judge retired before an opinion was issued–was brought before the Illinois Supreme Court. Due to the judge’s retirement, the court ruled the decision was invalid and that the case would have to be reheard. The state then asked the supreme court to reconsider the Ortiz case. The court issued a supervisory order saying the appellate court should vacate its previous ruling and reconsider Ortiz’s case, taking into consideration the supreme court’s ruling in Proctor v. Upjohn.
Oral arguments on the meaning of the supreme court’s order were heard last May. Bradley argued that there was a major difference between the retired judge in the civil case and the dead judge in the criminal case–namely, the protection from double jeopardy that applies in all criminal cases.
On January 11 of this year, the appellate court agreed with Bradley, but it also agreed with the state’s argument: The appellate court has no right to overrule a decision by the Illinois Supreme Court.
“In short,” wrote presiding justice William E. Holdridge, “this court is bound to follow our supreme court’s supervisory order and vacate our original order, even [if] by doing so, we are clearly violating the defendant’s constitutional rights by subjecting him to double jeopardy. We looked for the wisdom of Solomon to lead us out of this dilemma. Having found none, we deny the defendant’s motion to affirm our previous order. We direct the parties to proceed with the appeal.”
The appeal is now in the works, and Edwin Ortiz is in legal limbo. In its search for the wisdom of Solomon, the appellate court may again rule that there was insufficient evidence to convict Ortiz. But there’s no guarantee that it won’t rule for the state and order Ortiz back to prison to finish his 35-year sentence.
The court also has a third option: it can send the case back to Bureau County to be reheard. If that happens, Ortiz will have to make a decision. Would you come back to Illinois if you were him? Would you return to Bureau County?
It doesn’t seem like much of a choice, and it may not seem fair. But then that’s our drug war, isn’t it?
Art accompanying story in printed newspaper (not available in this archive): illustration/Ken Wilson.