A legal dispute: Burglary or theft?

Adam Jadhav
Managing editor

Editor's note: This is part of a month-long project looking at how the Champaign County state's attorney handles crime.

Charles Thompson, 40, will face three to 14 years in the Illinois Department of Corrections when he is sentenced late this month.

Thompson's crime: Without paying, he walked out of a Payless Shoesource in southeast Urbana with three pairs — $43 worth — of children's sneakers stuffed inside his jacket.

A jury convicted Thompson on April 21 for burglary, theft with a prior conviction and obstructing justice.

Thompson admitted he stole the shoes, the theft charge. He admitted to throwing the shoes from his car when a police officer gave chase, the obstructing justice charge.

And while Thompson's conviction is a "classic Champaign County burglary case," according to John Piland, the county's state's attorney, many local defense lawyers claim the burglary charge raises issues with how Piland's office does business.

Defense attorneys argue that Piland abuses his prosecutorial discretion. They say he files too many burglary charges — felonies — many of which they say he can't prove. They claim that there is a discrepancy in the charging. And they say the burglary charges are coercive to defendants, forcing more plea-bargaining to lesser charges that should have been filed initially.

To back up their case, defense lawyers point to court records. They say other counties file fewer felonies, which shows Piland files for the most serious offense available, many times arbitrarily accepting plea bargains to a lesser charge.

Piland denies the allegations. He says he bases that determination on whether he can prove the charge.

"Our goal isn't to get as many convictions as we can get, but our goal is to protect the community," Piland said.

"If I can prove that you're going there to steal, then I'll charge you with burglary," he added.

With 190,630 residents, Sangamon County saw 1,184 felony cases in 2002, according to a report from the circuit clerk commissioned by The Daily Illini. That amounts to a rate of 621 felony charges for every 100,000 residents.

Piland's office filed 2,243 felonies in 2002. Champaign County, with a population of 183,159, has a felony filing rate of 1,224 for every 100,000 residents — nearly double that of Sangamon County.

"The state's attorney has an incredible amount of discretion based on the charge," said Champaign County Public Defender Randy Rosenbaum. "What our state's attorney tends to do is charge on the most serious offense as possible, regardless of whether it's appropriate."

Charging theft as burglary, at least initially, has been a routine in Piland's office, said state Rep. Chapin Rose, R-Charleston, who worked for Piland as an assistant state's attorney before becoming a legislator in 2003.

"When I was there, the policy was just about every theft was charged as a burglary," Rose said.

Piland maintains he only charges what he can prove, adding to the ire of some defense attorneys.

"That doesn't make it right because you can get a conviction," said Robert Kirchner, a Champaign attorney. "Could (a burglary case) be charged as a theft? That's where the prosecutorial discretion comes into play."

The Daily Illini, based on court records, found that in January 2002, Champaign County filed at least 41 burglary, residential burglary or attempted burglary charges. Some cases had more than one charge.

Sangamon County filed nine charges of burglary, residential burglary or burglary of a school or place of worship, according to the report from the Sangamon County Circuit Clerk.

Some records might have been left out, as the Champaign County Circuit Clerk does not keep records broken down by charge.

A matter of intent

Urbana police officer Jason Norton testified during Thompson's trial that a Payless store clerk flagged Norton down during a patrol. He said the woman was waving an empty shoebox and pointed to a car driving away; someone had stolen merchandise, Norton said.

The officer followed the vehicle and made a traffic stop.

"Did you buy anything at Payless?" Norton had asked Thompson.

"No," Thompson replied.

"Is there anything in your car that came from Payless?"

"Yes."

Piland, who tried Thompson's case, read the burglary statute to the jury. The law states that a defendant commits burglary when he or she "without authority knowingly enters a building with the intent to commit the offense of theft," Piland said.

He argued — and persuaded the jury — that Thompson had the intent to commit theft before entering the store.

Thompson left a friend sitting in the passenger seat of a car parked outside; he intended to be quick, Piland said.

A clerk testified that Thompson was making "furtive movements" inside the store. He was trying to not get caught, Piland said.

Clad in a worn blue Nike sweatshirt, Thompson, a black man with a roughly-shaven beard, slumped in his chair throughout the trial. He stared away from the jurors, only occasionally leaning to talk to Rosenbaum, his attorney.

Thompson did not testify.

Norton told the court that Thompson said the sneakers were for his children. Thompson had $16 on him, enough to buy only one of the pairs of shoes.

"I just wasn't thinking. Something just came over me," Thompson told Norton when explaining why he stole.

For Rosenbaum, that clinches it; he said the burglary charge should never have been filed. He said Piland has only speculation to prove Thompson intended to steal before coming to the store.

"He wants to get the most serious conviction he can," Rosenbaum said.

Piland said, in an interview after the conviction, that he wouldn't have settled for anything less than a burglary charge.

Sangamon County State's Attorney John Schmidt said he would not comment on another prosecutor's policies. However, in his county, retail theft is the more popular charge; he rarely charges burglary unless there is an actual break-in.

"You will most likely be charged with retail theft and it would be a misdemeanor," Schmidt said of a case like Thompson's.

Discrepancies in charging?

Thompson faces three to 14 years for the Class 2 felony burglary conviction with a prior history of theft. The theft with a prior conviction of theft and the obstructing justice charges — both Class 4 felonies — will earn him more prison time. He will stand in court May 28 for sentencing.

Thompson's record is laced with other criminal charges, many of them theft and burglary. He pleaded guilty to a 1994 charge of burglary and received 48 months of probation. The probation was later revoked and he was sentenced to six years in the department of corrections. Another 1994 burglary case, where Thompson was listed as a co-defendant, was dismissed.

In 1995, Thompson was listed as a co-defendant in a burglary case that also was dismissed by the state. A case of possession of a controlled substance against him was also dismissed. In addition, he pleaded guilty in another case to theft with a prior burglary conviction, and received 30 months of probation.

In 1997, the state dismissed a charge of theft with a prior burglary conviction and an unrelated charge of possessing a stolen vehicle.

In a 2000 case, Thompson pleaded guilty to a theft with a prior burglary conviction and was sentenced to the Department of Corrections for a year. In a 2001 theft case, he received a sentence of two years in prison.

Thompson still faces another burglary charge and an obstructing justice charge filed this year. A drug case from 2002 is also pending.

Tom Betz, director of Student Legal Services at the University and a Champaign County Board member, said the number of felony burglary cases filed is out of control. He said adding the felony burglary charge for retail theft only in some cases is not fair; that seems like arbitrary charging, he said.

"I see students that I represent in this office who are charged as retail theft," Betz said. "They're not even charged as a misdemeanor. They're charged as a city offense. You can pay it by mail."

But Piland said he uses the burglary charge as often as he does in part because it allows for more prison time if he can get the conviction.

"For the chronic burglar, for the chronic thief, for the chronic criminal, (the burglary statute) gives us an incredible tool to get them off the streets for a long period of time," Piland said.

Betz said that policy "is an extreme abuse of the criminal justice system that shouldn't be tolerated." He said crimes should be charged based on the offense, not who committed it.

"You get a terrible disparate impact with charging," Betz said. "Why is this person charged with theft and another with burglary?"

Coercion or discretion

In the 41 burglary charges filed in January 2002 in Champaign County, 29 were dismissed, mostly to plea-bargaining to other charges. In Sangamon County, five were dismissed and one received a reduced or amended charge.

Furthermore, The Daily Illini found that sometimes Champaign County prosecutors charged burglary along with theft; in other cases, the state filed burglary alone only to dismiss the charge when the defendant plea-bargained to a count of theft.

According to court records, on Jan. 15, 2002, the state charged a then-43-year-old defendant with burglary and theft with a prior theft conviction. As part of the bond, the defendant was ordered to "have no contact whatsoever, directly or indirectly" with the Wal-Mart in north Champaign.

Less than a month later, before the case had gone to pre-trial, the defendant pleaded guilty to theft with a prior theft conviction, a Class 4 felony. The defendant received a sentence of five years in the Illinois Department of Corrections. The defendant was also ordered to provide truthful testimony in connection with another case.

The count of burglary, a Class 2 felony, was dismissed by the state.

Rose said during his time as an assistant state's attorney, the burglary charges were often plea-bargained down to lesser charges.

"Like anything, bargain high," Rose said. "Part of the charging decision does ultimately give the state a little more leniency with its options."

The Daily Illini also found that in some cases, felony retail theft was charged and reduced to a misdemeanor theft with a sentence of probation.

On Jan. 14, 2002, a then-20-year-old woman was charged with burglary and possession of methamphetamine. On Aug. 8, 2002, she pleaded guilty to retail theft, a misdemeanor. She was sentenced to 24 months of probation, ordered to stop using illicit drugs and submit to random drug testing.

The burglary charge and the possession of methamphetamine charge were dismissed by the state.

Piland argues that in some cases pleas are offered to give the defendant a second chance. With deals, he hopes that people who commit crimes will turn their lives around.

"We'll plead somebody guilty to burglary on probation to give them a chance," Piland said. "We're essentially handing them the key and letting them decide whether they want to be locked up."

But local attorneys say that Piland charges with felony burglary only to coerce a defendant into accepting a plea deal to what should have been charged from the beginning. Attorneys say having a burglary charge hanging over a defendant's head is a way to induce a plea to a more appropriate charge.

Harvey Welch, an Urbana attorney, echoed the thoughts of others in the defense bar. He said that while Piland's office acts within the law, he thinks the prosecutors are "taking what's in the law and twisting it to their maximum advantage."

Many criminal defense lawyers in the community call the practice "Jones' burglary." The name came from Mike Jones, a Champaign County associate judge who was a public defender for the county in the early 1980s.

"When I was a public defender I used to bitch all the time about what I thought was overcharging — calling a shoplifting a burglary," Jones said. "I used to complain so much that it became known as a Jones' burglary."

The term was given more weight when a Fourth District Appellate Court used the "Jones' burglary" name in referring to retail thefts charged as burglary in a 1992 court opinion. The opinion raised issues of overcharging, Jones said.

While Jones said as a judge he can't comment on what he thinks now, he agreed with Welch.

"Sometimes it's leverage for the prosecution to get a guilty a plea to a lesser charge, but almost always it starts as a burglary," Jones said. "In many counties, they wouldn't even think of doing that, and in some they do it a few times, but none as often as Champaign."

Piland denies that forcing pleas is a consideration in filing charges. He repeats that he only files what he intends to prove.

"I have to prove it beyond a reasonable doubt," Piland said. "If it's nothing, then it'll be defeated."

Frank Zimring, a University of California at Berkeley law professor, said he's not surprised at Piland's approach. Zimring, who studied Illinois statutes while teaching at the University of Chicago, said the state's code leaves the discretion to Piland.

"There are a lot of state's attorneys that say that you should only charge levels of seriousness that you think are really appropriate," said Zimring, a criminal law and policing expert. "(But) if you're the state's attorney, it's going to sound fair. You're going to use everything you've got in the penal code."

Brian Otwell, Sangamon County public defender, said Champaign County's use of the burglary charge would be unheard of in Sangamon.

"I don't think the judges would put up with that here," said Otwell, president of the Illinois Public Defender Association. "To do that just because you can, that's just an ultimate abuse of the system."