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Criminal Nuggets

Jan 22, 2015

The Illinois controlled substance act determines a person’s sentence depending on the weight of “any substance containing cocaine”. In podcast episode 046 of the Criminal Nuggets Podcast, I discuss a case involving a stipulation to the drug amount and testing that goes way wrong.

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Did trial counsel commit ineffective assistance of counsel by entering into a stipulation that rescued the State from having to prove the unprovable, namely, that the weight of the illegal substance defendant possessed was "900 grams or more"?

Illinois Controlled Substance Act Charges

Defendant is serving 25 years in prison for  unlawfully delivering 900 grams or more of a substance containing cocaine, an offense he committed while having a prior conviction of unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D)).

Defendant was charged under the Illinois Controlled Substance Act. The exact charge Defendant faced reads, in part, that -


 “... it is unlawful for any person knowingly to ... possess with intent to...deliver...a controlled substance...Any person who violates this Section with respect to the following amounts of guilty of a Class X felony and shall be sentenced to a term of imprisonment as provided in this subsection (a)...not less than 15 years and not more than 60 years with respect to 900 grams or more of any substance containing cocaine...”

720 ILCS 570/401(a)(2)(D).


A drug raid discovered 15 individual bags of white powder in a purse in the kitchen.

Also found in the kitchen was:

  • A scale with residue
  • A box of plastic baggies
  • A plastic bag cut open with residue and consistent with holding a kilo of cocaine

The home owner testified that the cocaine belonged to Defendant, and that he was “baggy up” the cocaine before the raid.

Trial counsel stipulated that a chemical analysis by a forensic scientist showed that the drugs in the case tested positive for  "926.0 grams of cocaine."

After the stipulation was entered into the record, a testifying officer revealed that an officer commingled the powder from 15 separate bags into one bag before sending it off to the laboratory. “Thus, the substances in the 15 bags were never separately tested to determine whether each of them, individually, was indeed a substance containing cocaine.” ¶ 2.

Defendant argued that once all the powder was mixed it would have been impossible for the State to determine if the individual bags in fact contained any cocaine. This would have resulted in substantially less prison time.

According to Defendant’s petition, this stipulation, uninformed by any reasonable prior investigation, threw away a valuable, meritorious defense, a defense premised on the supreme court's decision in People v. Jones, 174 Ill. 2d 427 (1996).

The Law

The Illinois Supreme Court of People v. Jones, 174 Ill. 2d 427 (1996), discusses this measurement and testing issue.

That case distinguishes between the testing of pills v. a powder.

Random pill testing is sufficient to prove all group of pills are all the same chemical because of  the circumstantial evidence around pills.  

Pills will have similar - 

  • Size
  • Stamping
  • Texture
  • Packaging
  • Beveling

- that powder simply will not have. Furthermore, the likelihood and risk that multiple substances can be mixed into a powder and thrown into a plastic baggy is great.

Proof beyond a reasonable doubt, thus, requires that separately packaged baggies of suspected baggies be tested individually to prove their contents. To do otherwise would be to rely on rank speculation. Our system requires much much more.

Why Did They Stipulated?

It is easy to see how the defense team entered into this stipulation.

First of all, the defendant had always been saying that the drugs were not his. He testified to that. I'm sure he was telling his attorneys that from the get go. Thus, in the defense attorney's eyes the defense was aimed at preparing the client to testify. 

Second of all, Illinois State Police Laboratory Reports suck. 

They don't explain anything. Much is left to guessing and wondering. Often, all that is provided is a single page that lists the results. The reason the officer took the powder out of all the bags was because he wanted to tag the empty baggies for fingerprinting.

This meant that the chain of custody paperwork listed the individual baggies as separate exhibits. Nobody ever explicitly wrote down to explain that the baggies were empty! 

The attorneys would have seen the baggies going to the lab as separate exhibits. Then the final report comes in. This was just a single line of text saying the weight and that it was positive for the presence of cocaine. 

Yes, it could have been possible to determine that only one "item" was tested for drugs, but it would not have been "obvious."

This is what the scientists explained in the postconviction hearing through a written stipulation:

Generally, there was no need to test for purity, because the State had only to prove that the substance in question contained a controlled substance; the ratio of the controlled substance to other ingredients typically was irrelevant, since, under statutory law, the seriousness of the offense depended not on the amount of the controlled substance but, rather, on the amount of the substance containing the controlled substance. [The scientist] admitted that if 14 bags containing no cocaine were mixed with 1 bag containing cocaine, the crime laboratory would find that the entire substance was a substance containing cocaine.  ¶ 57.

This is usually how the laboratory scientist explains why they only conduct limited testing. Good luck getting them to conduct any additional testing of any kind.

The Scramble to Fix It

It was not as though the trial attorneys did not see the issue and try to fix it.

The record reveals a mad scramble to "undo" the stipulation. There was a defense motion for a directed finding after it was clear that the mixing had occurred.

Denied. The judge said, "You stipulated! So Nah Nah." Maybe they didn't use those words but that was pretty much the reasoning. 

There is more. The defense team was then ready to argue to the jury that the prosecution did not prove beyond a reasonable doubt that there was more than 900 grams of cocaine. But the State made a motion in limine that prevented the defense from arguing exactly that point. 

Again, the judge them a chance to fix the mistake. They couldn't explain to the jury that because of the mixing of the baggies the State could not prove that 900 grams or more of a substance containing cocaine was present!

So it was not like the trial team did not vigorously try to undo what had happened. Their efforts just didn’t bear any fruit.

It is real easy for me to write a year after the fact that they could have 

  • Made a Motion for Mistrial
  • Argued Their Own Ineffectiveness
  • Just Try to Vacate the Stipulation

In the heat of the moment during a trial you do what you can to alter the course of events. Sometimes possible alternatives don't always come to mind. 

The Holding

Unfortunately, the appellate court conclude that the trial attorney was ineffective for agreeing to the stipulation before carefully examining the laboratory records. 

Trial counsel should have investigated whether the substance in each of the 15 bags was separately tested, since the weight of the illegal substance was an essential element of the State's case and, according to case law, the powder in each separate container had to be tested.