FILED

7/20/2022 8:21 AM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
COUNTY DEPARTMENT, CRIMINAL DIVISION CIRCUIT CLERK
COOK COUNTY, IL
FILED DATE: 7/20/2022 8:21 AM 20CR1304901

20CR1304901
THE PEOPLE OF THE STATE OF ILLINOIS, ) Stephenson, Domenica A.
Plaintiff, ) 18741375
)
v. ) Case No. 20CR1304901
)
AARON OKELOLA, )
Defendant. )

MOTION IN LIMINE TO PERMIT PRESENTATION OF A DEFENSE BASED ON

FEAR OF POLICE VIOLENCE AND PROVISIONALLY TO PRESENT EXPERT
TESTIMONY

INTRODUCTION

Defendant seeks to present evidence, including potential expert testimony, asserting a self-
defense, compulsion, necessity, or similar theory based on Defendant’s reasonable fear of imminent
unlawful violence against him by police officers. Defendant avers that he acted out of such fear and
that an expert will help a jury understand the reasonableness of such fear based on the systemic
violence of police against African Americans and the way this violence is understood in the Black
community.

FACTS

1. Defendant is charged with violating various Illinois statutes relating to an interaction with
the Chicago Police Department that took place on November 23, 2020.
2. Specifically, Defendant is accused in the charging documents with Attempted Murder,
Aggravated Battery, and Aggravated fleeing a Chicago Police Officer related to a traffic
stop which occurred on November 23, 2020.
3. The charging documents already suggest, and Defendant intends to further develop at
trial, circumstances which would give rise to the proposed defense. Specifically,
Defendant’s alleged criminal conduct occurred as a direct response to Chicago Police
Department conduct in that they unsafely initiated a police stop which reasonably put Mr.
Okelola in fear of harm and injury.
 4. Defendant acted out of fear for his personal safety. Defendant is a part of the Black
community and has been immersed from birth in cultural narratives regarding police
FILED DATE: 7/20/2022 8:21 AM 20CR1304901

violence against Black men such as himself. These narratives are grounded in reality and
Defendant has experienced them viscerally through media and the direct impact of police
violence on people he has known.
5. As shown in further detail below, Defendant is able to meet all elements of self defense,
compulsion, or necessity. Furthermore, as shown below, use of an expert is warranted in
this circumstance.

ARGUMENT

Defendant has a Constitutional Right to Present a Defense

Presenting a defense, affirmative or otherwise, is grounded in the United States Constitution.

“The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic
elements of a fair trial largely through the several provisions of the Sixth Amendment.” Strickland v.
Washington, 466 U.S. 668, 684-685, 104 S.Ct. 2052 2063, 80 L.Ed.2d 674 (1984). Hence the right to
present a defense has dual roots and the Supreme Court has sometimes questioned whether it is
“rooted directly in the Due Process Clause of the Fourteenth Amendment…or in the Compulsory
Process or Confrontation clauses of the Sixth Amendment.” Crane v. Kentucky, 476 U.S. 683, 690, 90
L.Ed.2d 636, 106 S.Ct. 2142 (1986). Regardless, an essential component of procedural fairness is an
opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914).
The Constitution guarantees criminal defendants “a meaningful opportunity to present a complete
defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528 2532, 81 L.Ed.2d 413 (1984).Accord
Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).

The Illinois Bill of Rights has parallel provisions. Ill. Const. 1970, art. I, § 8.

Few rights are more fundamental than that of an accused to present witnesses in his own
defense. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); Washington v. Texas, 388 U.S.
14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682
(1948).

Nevertheless, this right is not unlimited. A defendant may be required to comply with ordinary
rules of procedure or evidence, for example, but even then, these rules must sometimes give way if

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 they operate so as to effectively negate the ability to present the defense. See, e.g., Chambers v. Mississippi,
410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (hearsay rules “may not be applied
FILED DATE: 7/20/2022 8:21 AM 20CR1304901

mechanistically” to reject defense evidence where vital to ascertainment of the truth).

The right to present a defense is obviously limited to presentation of relevant evidence.

Irrelevant evidence does not support an accused’s right and may be excluded without infringing on an
accused’s constitutional right to present a defense. People v. Dalzotto, 55 Ill.App.3d 995, 998, 13 Ill.Dec.
767, 371 N.E.2d 859 (1977). See also Chambers, Washington, cit. supra.

So long as the evidence is relevant to support a valid defense, however, the right to present a
defense is not premised on any degree of superficial plausibility or prima facie showing that the defense
will have legs. “It is a fundamental right of a defendant to present his theory of the case, no matter
how overblown or specious it might appear.” People v. Osborne, 114 Ill.App.3d 433, 437, 71 Ill.Dec. 513,
451 N.E.2d 1, 3 (4th Dist. 1983). Accord People v. Tally, 2014 IL App (5th) 120349, ¶ 31,10 N.E.3d 488,
381 Ill.Dec. 403.

In many cases, including Tally and People v. Ramirez, 2012 IL App (1st) 93504, 976 N.E.2d 513,
364 Ill.Dec. 235, the right to present a defense has applied to affirmative defenses. Indeed there is no
principled basis upon which it would apply only to negative defenses.

Self Defense and Similar Defenses Apply

Illinois provides and affirmative defense of self-defense at 720 ILCS 5/7-1(a) which states:

A person is justified in the use of force against another when and to the extent that he
reasonably believes that such conduct is necessary to defend himself or another against
such other’s imminent use of unlawful force. However, he is justified in the use of
force which is intended or likely to cause death or great bodily harm only if he
reasonably believes that such force is necessary to prevent imminent death or great
bodily harm to himself or another, or the commission of a forcible felony.

This is followed by a provision, 720 ILCS 5/7-4, which removes such a defense from one who is an
“aggressor.”

Self-defense is one of a family of related defenses which also include compulsion and necessity.
Section 720 ILCS 5/7-11(a), for example, describes the defense of compulsion:

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 A person is not guilty of an offense, other than an offense punishable with death, by
reason of conduct that he or she performs under the compulsion of threat or menace
FILED DATE: 7/20/2022 8:21 AM 20CR1304901

of the imminent infliction of death or great bodily harm, if he or she reasonably

believes death or great bodily harm will be inflicted upon him or her, or upon his or
her spouse or child, if he or she does not perform that conduct.

Likewise, section 720 ILCS 5/7-13 describes the defense of necessity:

Conduct which would otherwise be an offense is justifiable by reason of necessity if

the accused was without blame in occasioning or developing the situation and
reasonably believed such conduct was necessary to avoid a public or private injury
greater than the injury which might reasonably result from his own conduct.

Each of these defenses has its own unique parameters but they all apply in circumstances
where an otherwise criminal act is undertaken to avoid some type of injury. Self defense applies to
prevent imminent application of unlawful force, compulsion to prevent death or great bodily harm,
and necessity to prevent injury greater than that risked by the defensive response. Each has its own
test for allowing only proportionate or required force, and each depends upon the reasonable beliefs
of the defendant.Each of these defenses may be used to prevent harm to oneself. This is explicit in
the statutes for self defense and compulsion and this was made clear for the defense of necessity in
People v. Unger, 66 Ill.2d 333, 340, 362 N.E.2d 319, 5 Ill.Dec. 848 (1977).

Compulsion is also sometimes called “Duress” and the Illinois Supreme Court has noted its
similarity to and confusion with necessity, as well as varying proposals to distinguish the two, apart
from their specific statutory parameters. Unger, 66 Ill.2d at 340.

As the court noted in Unger, compulsion typically is intended for the circumstance when a
third party intentionally pressures the defendant to commit a particular crime, but other commentary
suggests that the compulsion must merely have a human as opposed to a natural source. It is important
to note that the statutes do not require a human or natural source or an explicit threat for either
offense. Logic dictates that a defense of duress be applicable to offenses other than one which a
defendant is coerced to perform. Otherwise, a defendant may be required by law to commit a more
serious and socially harmful offense rather than a less serious one in order to escape criminal liability.
This would be an absurd and perverse effect which could not possibly have been intended by the
legislature.

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 Illinois requires only minimal evidence of self-defense before the burden shifts to the state to
disprove it. A person can be justified in defending himself or herself based on apparent danger,
FILED DATE: 7/20/2022 8:21 AM 20CR1304901

regardless of whether the danger is real. The issue is whether the defendant’s belief that he or she is
in imminent danger was reasonable under the circumstances. People v. White, 87 Ill.App.3d 321, 409
N.E.2d 73, 42 Ill.Dec. 578 (1st Dist. 1980). The subjective belief on the part of the accused that he or
she was in danger — his or her fear, in other words — is enough to put the issue before the trier of
fact. Whether that subjective belief was reasonable is a question of fact that must be resolved by the
trier of fact. People v. Scott, 97 Ill.App.3d 899, 424 N.E.2d 70, 53 Ill.Dec. 657 (3d Dist. 1981).

There is a further principle involved, when the defendant uses deadly force. This principle
limits the use of deadly force to those situations in which, (a) the threatened force will cause death or
great bodily harm or (b) the force threatened is a forcible felony. People v. Williams, 56 Ill.App.2d
159, 205 N.E.2d 749, 752 (1st Dist. 1965).

Illinois does not impose on a non-aggressor a duty to retreat from a place where he or she is
legally entitled to be, before he or she may engage in self-defense. People v. Estes, 127 Ill.App.3d 642,
469 N.E.2d 275, 82 Ill.Dec. 741 (3d Dist. 1984).

The facts of this case would support presentation of any of these three defenses. The first
requirement, explicit in necessity and self-defense, and arguably applicable in some degree to
compulsion as well, is that the defendant did not, in the particular formulation applicable to the
offense, “provoke” or “agress” or contribute unlawfully to “occasioning or developing the situation.”

Defendant will be able to show that any conduct which he engaged in which drew the attention
of law enforcement was not sufficiently provocative or contributory to the menace that he faced so
as to negate the offense. All Defendant did, even if all the allegations against him were credited (and
these have not been shown) would be to have violated a traffic statute, he ran a red light. This cannot
be remotely seen as the activity responsible for creating the perceived threat of police violence in any
legally meaningful way. The law simply does not accept that one who has acted as Defendant is alleged
to have acted may be met in response with being beaten, suffocated, or shot, which is what Defendant
reasonably feared.

Defendant can also meet the specific proportionality conditions of the statutes. His attempt
to escape the officers was in response to fear of great bodily harm or death. Hence by law it could
justify use of a high level of proportionate force. It is a question of fact for trial what level of injury to

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 an officer could reasonably have been deemed “likely” under these circumstances. But assuming the
officer acted reasonably to avoid his own injury, Defendant would contend that injury rising to the
FILED DATE: 7/20/2022 8:21 AM 20CR1304901

level of great bodily harm was not likely. Even so, a defense of his own life would legally serve to
justify any degree of force.

Regarding the reasonable fear of harm to himself, this is the root of the defense. Only the
defense of duress requires a “belief” that the defendant “will” be harmed. The other defenses only
require an apprehension of harm, or actions necessary to avoid harm, which means that the harm is
only required from a defendant’s perspective to prospectively likely, but not certain or near certain.
Defendant here can meet that standard. He was convinced that he faced a severe risk, bordering on
cetrainty, that the officers intended to inflict severe harm upon him.

It is especially important in this context to note that the objective “reasonable person” test is
to be applied in such a manner to consider all material circumstances from the perspective of the
accused, hence making the test not absolutely objective. For example, in other contexts, a reasonable
person test may become a “reasonable officer” test or a “reasonable 10-year-old” test, adapting the
standard to the relevant circumstances and status of the individual. Here we have a Black man in ____,
Illinois, in ___[year of offense] immersed in a culture of fearing the police. The test is not what a
reasonable person, per se, would fear, but what a reasonable Black man with this particular background
and in this particular set if circumstances would fear.

Defendant will show that his fear was eminently reasonable given these particular conditions.

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 Expert Testimony is Provisionally Warranted

Defendant seeks only a provisional ruling at this time that Defense may present the testimony
FILED DATE: 7/20/2022 8:21 AM 20CR1304901

of an appropriate expert. Defense has not yet engaged an expert. The Court should make a final
decision on whether to allow an expert only in the context of a particular candidate so that the Defense
may make a proffer and the court can evaluate that proffer in terms of traditional criteria such as
whether the proposed testimony will be helpful to the jury and whether the expert’s testimony is
sufficiently reliable. At the present juncture, Defense seeks only an assurance that such an expert on
the sources, prevalence, intensity, and personal effects of fear of police violence within the Black
community, and as affecting Defendant in particular may be worthwhile and a Defense motion for
presentation of a particular expert will be duly entertained.

Respectfully Submitted:

/s/ Anthony R. Burch

Attorney Name Anthony Burch

Firm Name Burch & Associates
Attorney for Aaron Okelola
Firm Address 1430 N. Western Avenue, Chicago, IL 60622
Firm Phone (773) 235-6565
Attorney No. 40670