Bobby Cann Updates: Ryne San Hamel Pleads Guilty, Receives 10 Days in Jail

Jason Jenkins at ActiveTrans is helping to coordinate community response.  If there is any chance you can attend proceedings, please reach out to him: 

jason@activetrans.org.

 

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Permalink Reply by Tom A.K. on January 30, 2017 at 5:04pm
Permalink Reply by Bob Kastigar on January 28, 2017 at 12:30pm

The Ride On Bobby facebook page gave me a good explanation of how this "402 Conference" works out, so I'll post it here:

"The purpose of a 402 Conference is for the judge to let the defendant know what sentence would be imposed if the defendant pleads guilty. The defendant can accept the sentence, or reject it and go to trial. The ASA is present but does not approve or reject the sentence. The sentence is completely up to the judge's discretion and the decision to accept or reject is completely up to the defendant. Probation for Aggravated DUI charges includes a mandatory minimum sentence of 10 days in jail or 480 hours of community service. The defense requested 480 hours of community service but Judge Hooks insisted on the 10 days in jail. The defense asked for some time to consider so Judge Hooks declared a recess for a couple of hours and when court reconvened the defendant accepted the sentence."

https://www.facebook.com/RideOnBobby/?rc=p

Permalink Reply by Bob Kastigar on January 28, 2017 at 2:57pm

Now I've had a little time to think about this response, and I'm uncomfortable and have more questions.  

"The ASA is present but does not approve or reject the sentence."  

Then why is the ASA even required to be present in a 402 conference?  It appears like an ex parte meeting, when the judge and the defendant alone decide on the outcome, and the ASA, representing society, has nothing to say and no part of making the decision.  It seems one sided and unfair if we, the public, are no longer involved.  A trial is supposed to be a contest between two sides before an impartial judge and the 402 conference allow San Hamel to avoid a trial with no input from society.

Permalink Reply by Bob Kastigar on January 29, 2017 at 2:42am

I have to disagree with Ride On Bobby's assessment, after reading about the 402 ruling of the Illinois Supreme Court, http://www.illinoiscourts.gov/supremecourt/rules/Art_IV/ArtIV.htm
Read down to d(1) where it says "  That the defendant or the prosecutor is free to accept or reject the judge’s recommendation"

So the States Attorney, our attorney, Kim Foxx, or the Assistant States Attorney Tandra Simonton is just as culpable in allowing San Hamel to avoid appropriate punishment, and that the sole blame should not be placed on Judge Hooks.  Our attorney is just as much, if not more, to blame.

Permalink Reply by Maurice on January 29, 2017 at 7:31am
I don't know who wrote that long quote, but it's not true. The prosecution can turn down the judge's suggestion for a negotiated plea agreement. HOWEVER, as I explained on here a while ago, the defendant can enter a blind (non negotiated) plea or take a bench trial with confidence that the judge probably won't increase the sentence beyond the 402 offer, so the ASA may feel that resistance is futile.
Permalink Reply by Bob Kastigar on January 29, 2017 at 8:31am

I May be wrong about this, but I think that if this would have gone to trial it would have been assigned to a different judge.

Permalink Reply by ad on January 30, 2017 at 3:55am

Even if it's true a new judge would have been assigned for some reason outside of the 402 conference (and I'm not sure that's true, as part of the 402 admonishments a defendant gets is that you won't get a new judge if you reject), as Maurice notes above, Ryne would have been free to just change his plea to guilty and accept a non-negotiated sentence from Judge Hooks.  It's very unlikely that Judge Hooks would have then upped the sentence in response to the prosecution's move. 

There's a lot of questions to be asked regarding how to approach these type of prosecutions in the future, but I'm not sure this is a situation where you can point a finger at one decision or factor and lay blame for what happened on it. 

Permalink Reply by Yasmeen on January 30, 2017 at 5:57am

A few more follow-up articles on the sentence:

Dead cyclist's friends, biking community question drunken driver's 10-day sentence

Cann's mother, Maria, said she felt San Hamel's statement was addressed more toward the judge.

"He never took responsibility and he never apologized," Cann said. "He spent a good deal of his time describing what happened after the crash and what a hero he was for running over to Bobby and holding his hand and talking about how Bobby went to a better place. It was offensive."

Full Article on Chicago Tribune: http://www.chicagotribune.com/news/local/breaking/ct-jail-old-town-...

10-Day Sentence for Bobby Cann’s Killer, a Repeat DUI Offender, Is an Insult

"This ruling proves once again the old adage that if you want to kill someone with few consequences, make sure they’re riding a bike." 

Full Article on Streetsblog Chicago: http://chi.streetsblog.org/2017/01/27/10-day-sentence-for-bobby-can...

Permalink Reply by Jim Reho on January 30, 2017 at 7:56am

I don't think at all that a new judge would have been assigned if the prosecution had rejected the deal.  Not at all.  

Criminal law isn't my specialty, but I've done a few Rule 402 conferences.  It doesn't take a weatherman to tell which way the wind is blowing.  You get a pretty clear idea of what the judge would do if the case went to trial.  I can understand why the prosecution wouldn't want to do a lengthy trial if they thought the result was already a foregone conclusion.  However, that doesn't excuse the lackadaisical job the prosecution did in this case.  They just didn't seem want to deal with it, nor did the judge.  His inexplicable ruling about the charges delayed matters a long time until the appellate court slam-dunked and reversed him.  Judges in Cook County seem to care a lot more about the futures of defendants in cycling cases than the lack thereof for the victims.  I don't know about you all, but I think that taking my life should cost more than ten days in jail, no matter how bad your lawyers coach you to say you feel.       

Permalink Reply by Yasmeen on January 31, 2017 at 5:33am

A thoughtful article from John Greenfield, "Cann Family Lawyer Discusses Light Sentence for Driver, Wrongful Death Case"

I contacted Cann family lawyer Todd Smith from the personal injury firm Power Rogers & Smith to get his take on the sentence, and for an update on the wrongful death lawsuit that the family is pursuing against San Hamel and the bars that allegedly over-served him. “What troubled me a lot [about the sentence] was that there was supposedly this enormous remorse, which didn’t seem to be backed up by what was argued by San Hamel.”

The case dragged on for years while the defense tried to get the case dismissed on various technicalities. San Hamel eventually hired high-paid celebrity attorney Sam Adam Jr., who argued that the crash was Cann’s fault because San Hamel had the green, Smith said. “San Hamel was drunk, his driving was out of control, and he didn’t brake at all. For a lawyer to say that we wouldn’t even be in court if it wasn’t for Bobby’s actions smells of a complete lack of remorse to me.”

“I thought Sam Adam’s argument was at least offensive, if not absurd,” Smith added. “Bobby was riding a bike that weighed something like 20 pounds. Here’s a 4,000-pound car flying through the city, hitting him so hard that it tears his leg off and leaves him bleeding on the pavement, and then they blame him? That’s not remorse, that’s someone who’s likely to do this again.”

While the Cook County state’s attorney office had requested a sentence of three to 14 years and was involved in the conference that led to the plea deal, Smith said that the prosecutors had no ability for force the case to go to trial. “In Illinois, the right to a jury trial is strictly the defendant’s [prerogative] and the sentencing is purely up to the judge. The state is there to make their case, but if the judge chooses a sentence that they don’t like, there’s not much they can do.”

Full Article: http://chi.streetsblog.org/2017/01/30/cann-family-lawyer-discusses-...

Permalink Reply by Bob Kastigar on January 31, 2017 at 6:11am

The state is there to make their case, but if the judge chooses a sentence that they don’t like, there’s not much they can do.

So if the defendants' lawyer doesn't like the sentence he can appeal.  But if our lawyer, the States Attorney, doesn't like the sentence there is no appeal right.  Seems somewhat one-sided to me.

Permalink Reply by Maurice on January 31, 2017 at 10:56am

Not really.  Here's a closely related example:  If he went to trial and was found guilty, then he could appeal.  However, if he went to trial and was found NOT guilty, then the government could NOT appeal.  That's not unfairly one-sided.  That's the constitutional protection against double jeopardy.  One side is the government and the other side is an individual person.  The government obviously has way more power in general, which is why the law gives individuals certain specific rights like these.

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