Ineffective assistance of counsel during jury instructions creates caution for most defense attorneys. This case, is no exception. Errors with jury instructions for the charge of possession of defaced firearm got everyone in trouble. Listen Podcast to Episode 009, to discover what happened in this case.
Illinois Compiled Statutes Criminal Code section 720 ILCS 5/24/5(b) provides that –
“[a] person who possesses any firearm upon which any such importer’s or manufacturer’s serial number has been changed, altered, removed or obliterated commits a Class 3 felony.”
As you may have noticed, this crime does not contain a mental state. The legislators actually took it out on purpose!
Illinois courts have said, “Look, we know the State lawmakers have taken out the ‘knowledge’ requirement from this law, but that is dumb and there has to be a required mental state.”
They did not exactly say it that way, but in their rulings they have included a “knowing” mental state in that crime applied to every element.
There are no recommended jury instructions for this crime. Attorneys like recommended instructions because it means no reversible error.
When we have to draft our own instructions we know that “tracking the code” is a safe bet to avoid error. Ineffective assistance of counsel during jury instructions can usually be avoided by tracking the code. The problem with “tracking the code” for possession of a firearm with defaced identification marks is that the code is wrong.
Ineffective Assistance of Counsel
The jury instructions in this case did not make it clear that the knowledge requirement also applied to the defaced identification marks. This means that the instructions needed to specifically point out to the jury that the defendant knew the gun in his possession had a defaced identification.
The instructions in this case did not do that.
The defense attorney was found to be ineffective for allowing those instructions to go through. We all know however, that despite the legal finding in this case. All the attorneys, including the court, have a responsibility to insure that correct legal instructions are presented to the jury.
Yes, the legal conclusion was “ineffective assistance of DEFENSE counsel”. But everyone had a slip up in this case.