Pro Bono Appeal: Match the Punishment to the Crime - McDermott Will & Emery

Pro Bono Appeal: Match the Punishment to the Crime


In 2018, police raided a known drug house in Kankakee County, Illinois, and found 19-year-old Latrell Franklin with 14 ecstasy pills and a bag of “green leafy substances” in his pockets. There was a gun in a downstairs closet, and police discovered scales and more bags of green leafy substances elsewhere in the home.

Latrell told the officers that he had bought the ecstasy from a 17-year-old friend who lived in the house and was there with him, but nothing else was his.


The police decided not to charge the 17-year-old juvenile, so the bulk of the legal charges stemming from the raid fell on Latrell.

Rather than charging Latrell solely with possession of ecstasy, the state charged him with intent to distribute the pills and cannabis (which had not yet been legalized in Illinois), along with armed violence—because of the gun in the closet.

The green leafy substances were never tested, so the cannabis charge was dropped, but the prosecution still spent most of the trial focused on those substances. Although they never made a connection between the green leafy substances and Latrell, he was convicted on all charges and sentenced to 16 years in prison.


To help clear a backlog of appeals cases, the Illinois Supreme Court started a pro bono appeals program allowing private attorneys, on a pro bono basis, to take on work typically handled by the State Appellate Defender.

Along with several other cases, a McDermott pro bono team took on Latrell’s appeal, aiming to demonstrate that he had been overcharged and convicted of crimes he hadn’t committed.


After briefing and oral argument, the Illinois Appellate Court agreed with that assessment. It overturned the jury verdict, vacating Latrell’s convictions. For defense attorneys arguing similar cases, the outcome better defined and clarified what the state needs to prove in establishing an “intent to distribute” to sustain a conviction.

The outcome was never a certainty: Latrell had committed and admitted to the crime of possession, but that was not the crime he had been charged with. To successfully argue the appeal, the pro bono team painted a more accurate picture of the situation and demonstrated that the prosecution’s charges and arguments at trial were legally out of bounds.


During the appeal, the pro bono team made several clarifying points:

First, it was prejudicial for the State to talk about the green leafy substances unrelated to the charges against Latrell. Some officers referred to them as “cannabis” and “marijuana” at trial, terms that had no basis in fact because the substances were never tested.

Second, the state never rebutted Latrell’s testimony that the 14 ecstasy pills in his possession were for anything other than personal use.

Finally, because the state didn’t establish the felony of intent to distribute, the armed violence charge—which requires the offender to be near a gun while committing an underlying felony—no longer applied.

Ultimately, the Court vacated all of the charges but remanded the armed violence conviction to the trial court to determine if sufficient evidence existed to proceed with that charge.

Learn more about our pro bono capabilities.