Criminal defense

September 15, 2015

Are You Being Charged With Official Misconduct in Illinois?

by Law Offices of David L. Freidberg, P.C.

A former Chicago police property custodian, who had held that position since 1990, was sentenced to two years in prison this week after she was caught on tape stealing money, jewelry, and a camcorder out of an evidence facility. She was convicted of the crime of official misconduct.

What is Official Misconduct?

There are two different types of official misconduct. One type is official misconduct by a public officer or a special government agent. The second type of official misconduct is done by an employee of a law enforcement agency, like in the case above. The first type of official misconduct is charged when any of the individuals mentioned above is alleged to have done any of the following when acting in his or her official capacity or capacity as a special government agent:

Intentionally or recklessly failing to perform any duty that is mandatory by law;
Knowingly performing an act which he or she knows is against the law;
Performing an act that exceeds his or her lawful authority with the intent to obtain a personal advantage; or
Knowingly accepting or soliciting another person for a fee or reward for any act which is not authorized by law.

The second type of official misconduct occurs when an employee of a law enforcement organization knowingly uses or provides information to an unauthorized recipient that was acquired in the course of employment, if the information is provided with the intention of obstructing or impeding the investigation, or interfering with the apprehension or prosecution of any person or criminal offense.

In addition to being charged with a class 3 felony, if convicted, the employee forfeits his or her employment. This is therefore a serious crime to be charged with, and it is important to have a knowledgeable criminal defense attorney at your side from the moment you are charged.

What is the Penalty for Being Convicted of Official Misconduct?

If convicted of official misconduct, you will be guilty of a class 3 felony. Under Illinois law, if convicted of a class 3 felony you can be punished with two to five years in prison. If you are convicted of an extended class 3 felony, then you can be sentenced to five to ten years in prison. You may also face fines and restitution if convicted. Continue reading

August 26, 2015

Are You Facing Registration as a Sex Offender?

by Law Offices of David L. Freidberg, P.C.

There are many crimes in Illinois for which if you are convicted (or found not guilty due to insanity), you are required to be a registered sex offender for a minimum period of ten years. This is a serious punishment, and if you are facing such a penalty, you need quality legal representation to protect you and advocate for your legal rights.

What You Need to Know

Crimes that may require future registration as a sex offender range from rape and murder of a child to indecent exposure (public indecency). Public indecency is obviously not punished as seriously as a violent sexual assault, yet the sex offender registry does not make any distinctions. Therefore, a person could theoretically be charged with public indecency for urinating in public, or charged with false imprisonment for improperly detaining a juvenile for suspected shoplifting, and could still be facing inclusion on the same sex offender registry as someone found guilty of rape and murder.

August 14, 2015

Have You Been Wrongly Identified in a Lineup?

by Law Offices of David L. Freidberg, P.C.

Eyewitness identification is incredibly unreliable, yet can be a determining factor in a jury finding someone guilty at trial. In a study of 525 wrongful convictions, the Innocence Project found that 73% of those wrongfully convicted (235), were found guilty due to incorrect eyewitness identification. If you are being charged with a crime, it is best to consult an experienced criminal defense attorney immediately, and especially before standing or having your photograph presented in a lineup.

Wrongful Identifications in Illinois

Illinois alone has released more than 20 wrongfully convicted criminals since 1993. Thankfully, Illinois is taking steps in attempts to cure this issue. A recent legal change is a step in the right direction. Illinois has a new statute governing lineup procedures, 725 ILCS 5/107A-2. This statute is an attempt to remove human influence from tainting the lineup procedures, by requiring the use of either an independent administrator, an automated computer program, or random shuffling of photos for all lineups. This new statute also contains other safeguards, including video recording and written reporting requirements, all measures designed to strengthen the reliability of the results and prevent misidentification of witnesses. According to the new law, lineups now must be conducted using one of the following methods:

Independent Administrator

An independent administrator is somebody who is not a police detective, officer, or any other member of the arresting police force. The lineup administrator has to draft and file a report at the end of the lineup, which must be shared with your lawyer.

Automated Computer Program

If the lineup is going to be a photographic lineup (rather than one in which people stand before a glass), then this statute allows an automated computer program or other automated device to be used. The automated program will automatically display a lineup of photographs to an eyewitness without allowing the lineup administrator to see which photographs the eyewitness is viewing until after the lineup is completed.

Random Photo Shuffling

If there is no independent lineup administrator available, and no automated computer program to “shuffle” the photos for the lineup, then the lineup administrator must place randomly numbered photographs in folders and present them to an eyewitness. The statute requires that the lineup administrator does not see or know which photographs are being presented to the witness until after the lineup is completed.

Other Requirements

In addition to using one of the methods above, law enforcement agencies have to adopt written guidelines that explain in which circumstances simultaneous lineups will be used (all photos are shown at the same time), and under which circumstances sequential lineups will be used (when an eyewitness is shown photos one at a time). There are also specific instructions that must be given to the witness, and all lineups must be audio and video recorded whenever possible. Copies of any recordings must be given to your lawyer during the discovery process.

This new law still does not go far enough to protect you from an erroneous conviction based on wrongful identification. There is a catch-all provision in the new law that allows the police to use “any other procedure” which supposedly prevents the lineup administrator from knowing the persons or photographs presented to the witness, but in essence allows the police to avoid using any of the procedures this statute suggests.

May 29, 2015

New Program Hopes to Keep Mentally Ill Defendants Out of Jail

by Law Offices of David L. Freidberg, P.C.

On the heels of the Chicago “Rocket Docket” program comes a new initiative from the Cook County Sheriff’s Office aimed at identifying – and getting treatment for – Cook County misdemeanor arrestees with mental health issues.

Mental Health Crisis in Cook County Jails

Cook County Sheriff Thomas J. Dart has been a proactive force in efforts to keep non-violent, mentally ill Cook County offenders out of jail, focusing his efforts instead on getting them much needed mental health treatment. The Cook County Sheriff’s website estimates that approximately 30% have some type of mental illness that is a major contributing factor to their crime. The greatest concentration of crime committed by those with a mental illness is in the south suburbs, which saw a huge increase when the Tinley Park Mental Health Center closed in 2012, which left many patients with no options for treatment or housing, leading them to petty crimes as a means of survival.

Yet for these non-violent offenders, spending time in jail while they await trial is not the answer – without services or treatment, once released these inmates will fall right back to a life of crime. Thus a vicious cycle of arrest, incarceration, and discharge continues, all at a huge cost to taxpayers.

The pilot program is housed at the Markham Courthouse and is run in partnership with Adler Community Health Services. Pre-bond detainees are screened to determine eligibility for the program based on their charge (only misdemeanor charges are considered), background and mental health needs. Appropriate detainees are referred to the judge, who has discretion to release the arrestee on his own recognizance, with the condition that they enroll in the Sheriff’s Office’s mental health clinic for regular treatment.

Opened in 2014, Sheriff Dart’s Mental Health Clinic provides therapeutic services, job training and discharge planning for Cook County Jail inmates with mental illness. The hope is that with proper treatment and medication, and skills that can help them secure a job, these arrestees will be able to become productive members of society and break the cycle of incarceration, while at the same time saving taxpayers the high cost of incarceration and leaving the jails open for violent offenders.

This program is promising and, if successful, will hopefully be expanded to other courthouses throughout Cook County. Many Chicago residents suffering from mental illness lack the mental capacity to stand trial, as they do not understand the nature of their actions. But there are many that fall between the cracks – they understand the nature of the proceedings, and that their actions are wrong, but their mental illness makes them unable to control themselves, or to make choices that could steer them away from theft, trespass and the other petty misdemeanor crimes they are often arrested for committing. But with the right combination of treatment, medication, job training and life planning, they can get their mental illness under control before they progress to committing violent crimes that will land them in prison and have no chance of treatment.

May 27, 2015

Accelerated Resolution Court Act Seek to Get Cook County Inmates Out of Jail

by Law Offices of David L. Freidberg, P.C.

The Illinois Senate unanimously passed a bill that would move petty, non-violent offenders out of the Cook County jail system on an expedited basis. The bill, which creates a pilot program in the Cook County Jail, is aimed at releasing low-level offenders of crimes such as retail theft and criminal trespass from jail within 30 days of booking. It now moves on to the House.

Chicago “Rocket Docket” Bill

The Accelerated Resolution Court Act, or the “Rocket Docket” bill, was pressed by Cook County Sheriff Thomas J. Dart as a means of relieving the high taxpayer cost associated with incarceration and minimizing the inequity faced by defendants charged with petty, non-violent crimes. Often times, low-level offenders spend an outrageous amount of time in jail for their crimes not because they pose a risk to society, but because they cannot afford to post bond.

To highlight the need, Sheriff Dart posts weekly case studies that highlight the amount of time low-level offenders spend in jail awaiting trial, the charged crime and the amount of money it costs taxpayers to incarcerate the defendant. The studies are truly outrageous:

A homeless woman spent 135 days in jail, at a cost of $19,305, for stealing two plums and three candy bars;
A homeless woman, who suffers from mental illness, is repeatedly arrested for criminal trespass at public places, mainly after she begins shouting obscenities at patrons; her most recent arrest, for trespass at O’Hare, netted her 51 days in jail at a cost of $7,293 to taxpayers.

There are at least a dozen other such studies, most involving homeless people with mental illness and/or alcohol problems. They are repeatedly placed in jail for these non-violent offenses – many of which are committed due to a need for food or shelter for themselves. They remain in jail until their case is completed, whether due to dismissal, plea or jury trial, and then return to the streets following completion of their sentence without having received any assistance for their underlying issues, whether that be alcohol and drug abuse, mental illness or the lack of a place to stay. The result – they cycle right back through the system.

Accelerated Resolution of Petty Cook County Crimes

Under the bill, in order to be eligible for participation in the Accelerated Resolution Court Act, the defendant must be:

In custody 72 hours after bond was set;
Unable to post bond or ineligible to be placed on electronic home monitoring, and;
Charged with either retail theft of property valued at $300 or less or criminal trespass to property.

Defendants who have been convicted within the past 10 years of a violent crime, such as murder, rape or kidnapping, cannot participate in the program.

Cook County Sheriff’s officers refer appropriate cases to the Accelerated Resolution Court, which then has 30 days to hear the case. If the defendant’s case is not heard within 30 days of referral, he is released on his own recognizance. This does not mean that the defendant walks free. Rather, he is released from jail until the case is resolved; he can still later be tried, convicted and put back in jail. Without the program, non-violent offenders who are unable to post bond often spend more time in jail awaiting trial than the sentence that would be imposed if convicted at trial.

May 20, 2015

Forensic Podiatrists Examine Crime Scene Footprints to Identify a Suspect

by Law Offices of David L. Freidberg, P.C.

Often a criminal defense case will rely on the use of expert testimony. Whether it is DNA evidence, blood splatter, fingerprint or hair analysis, this evidence must be tested and interpreted, and the results relayed to the jury by an expert in the field. Much of the forensic evidence used in criminal trials is well accepted theory. The prosecutor and defense attorney may disagree on whether the fingerprint analysis points to the defendant, or whether the results of DNA testing pinpoint the defendant as the suspect, but they do not question the science behind this evidence or its ability to be used to identify a suspect.

But what happens when a new type of science comes along, such as say, forensic podiatry?

Use of Expert Testimony in Chicago Criminal Cases

Forensic evidence, when available, and questioning of the forensic expert, can often mean the difference between conviction and acquittal. If the evidence doesn’t point to the defendant as the one who committed the crime, the verdict is often (though not always) an acquittal. Likewise, if the expert can be debunked on the stand, whether due to a history of inaccurate analysis, improper credentials or because the other side’s expert comes across as more knowledgeable, the verdict can be swayed in favor of the side with the most convincing expert.

Not just anybody can be deemed an expert with the ability to testify in court regarding a particular subject. Some experts are recognized on a local level, and neither side will object to their being brought to the stand to testify as an expert in their particular field. In order to be accepted as an expert, the prosecution (or defense, depending on who is calling the expert) must show to the court that he has the necessary “knowledge, skill, experience, training, or education” regarding the subject matter of which he claims to be an expert. This proof is usually accomplished by the expert’s educational background, work in the field, publications, number of prior cases in which he has served as an expert and reputation in the field.

If, however, the witness claims to be an expert in a field that is new – such as forensic podiatry – the requirements to be admitted as an expert are a bit harder to prove. In addition to proving the necessary knowledge in his field, the prosecution or defense attorney (depending on who is calling the expert) has the burden of proving that the scientific principles or methodology underlying the expert’s opinion, and how he came to it, “is sufficiently established to have gained general acceptance in the particular field in which it belongs.”

What does this mean? It means that the prosecution must prove more than just “this witness is an expert because he works in this field.” In the growing field of forensic podiatry, which is not as generally accepted as fingerprint analysis or DNA, he would have to prove that the science behind the method is sound. The judge is responsible for making a determination as to whether a witness qualifies as an expert; the jury may give as much weight to the witness’ testimony as they wish, which means they can discard it entirely.

Both the prosecution and criminal defense attorney can call their own witnesses to the stand to testify about the same piece of evidence. It is then up to both attorneys to prove to the jury why their expert is the most credible, and why his testimony should be given the greatest weight during deliberations.

May 14, 2015

The Use of Social Media in Chicago Criminal Cases

by Law Offices of David L. Freidberg, P.C.

Social media sites such as Facebook, Twitter and Instagram are changing more than just how we communicate with friends and family. It is changing the way law enforcement and criminal defense attorneys handle their cases as well.

The Oak Brook police department, for example, posts alerts on its Twitter and Facebook pages in real time, alerting followers to descriptions of suspects and vehicles to be on the lookout for. Law enforcement routinely comb suspects’ social media sites – many of which are wide open to the public – for evidence that could point to commission of the crime or fulfill the reasonable suspicion necessary to obtain a search warrant.

Law enforcement also uses social media in sting operations to catch child predators, having undercover cops pose as underage children in online chat rooms or other groups and arranging meetups. And a suspect’s updates can pinpoint his location to a specific time and location, which could help put him in the vicinity of the crime or, in the case of a defense attorney, could provide an alibi.

But while social media is changing the way police, prosecutors and criminal defense attorneys obtain evidence and conduct their investigation, the evidence is still subject to scrutiny and must be collected in accordance with the same rules of criminal procedure that apply to other evidence.

Access to social media accounts. For example, law enforcement could not hack into your social media sites. If they want access to non-public information, they need to obtain a search warrant or have your consent to access the sites. If you have a shared account with another person – many husbands and wives share Facebook accounts, for instance – the other person could consent to law enforcement’s access of the account.

Hacked accounts. If the police find photographs or other evidence that tends to show the suspect was responsible for the crime, computer experts must be called in to examine the evidence to determine if it could have been posted by somebody else. Did the suspect have access to the social media site at the time the photo, status or other evidence was posted? Does somebody else have access to the account? Could the time stamp or location designation have been altered? Could the incriminating evidence have been posted due to spam?

On the other hand, social media sites give law enforcement the potential for unparalleled access to a suspect’s information that may seem sneaky, but are nonetheless legal.

Facebook friends. If your page is private, law enforcement can set up a fake profile and request to be your friend. If the friend request is accepted, law enforcement can use anything on your page as evidence without the need for a search warrant, because you invited them to look.

Off-site entry. Have you ever gotten a call from somebody claiming to be your computer’s technical support, asking for access to your computer to fix a “bug”? Law enforcement could try to access your computer that way as well, which could give access to your social media passwords. This may be considered legal access to your information, even though you wouldn’t have given them permission if you’d known who they really were, similar to if you allow a police officer into your home.

May 12, 2015

FBI Admits Errors in Analysis of DNA Evidence

by Law Offices of David L. Freidberg, P.C.

A joint task force comprised of the U.S. Department of Justice, the Federal Bureau of Investigation, the Innocence Project and the National Association of Criminal Defense Lawyers released a report in April indicating that in at least 90% of criminal defense trials reviewed, testimony by microscopic hair comparison analysis examiners was erroneous.

Three thousand cases involving FBI hair analysis are being reviewed as part of the review process. As of March 2015, approximately 500 of those cases have been reviewed. Among the report’s findings:

In cases where the examiner’s testimony was used as evidence of the defendant’s guilt, 96% contained erroneous statements;
In cases where the defendant received the death penalty, 94% contained errors;
Nine of the defendants sentenced to death have already been executed, and five died of other causes on death row; and
Of the 28 FBI examiners whose testimony has been reviewed, 26 of them had errors in their testimony or prepared lab reports containing erroneous statements.

The results of the joint study do not mean that there was no other evidence to support the defendants’ guilt, and the prosecution may have won a conviction even if the erroneous testimony had not been admitted at trial. But the fact that 96% of cases included false proof of guilt highlights the need for independent forensic experts in all criminal defense cases.

The popularity of television crime procedurals means that the public is more aware of DNA and forensic evidence than ever before. For many proof of guilt or innocence rests on the presence of DNA. But while advances in forensic science mean that forensic analysts are able to obtain DNA evidence from smaller and smaller specimens than they were in years past, the potential for error still exists, and a DNA “match” is not the slam-dunk television would have you believe. Errors in DNA evidence may include:

Improper collection;
Contamination of specimen prior to processing;
Failure to obtain a search warrant prior to taking a specimen;
Contamination of specimen during testing;
Malfunction of equipment used to test specimen;
Inadequate credentials and expertise of examiner, or;
Improper analysis of evidence.

Errors in DNA testing and analysis may be malicious or due to simple human error. Regardless of the reasons, those errors will go undiscovered without the knowledge and expertise of a seasoned criminal defense attorney and independent forensic experts. Forensic analysis submitted by the FBI or police department is biased; after all, they are the ones who made the arrest, so they are convinced of the defendant’s guilt. Thus in order to convince the jury that the prosecution’s analysis of the evidence is wrong, the defendant must obtain his own expert to test the DNA sample and prepare his own report on whether the evidence points to the defendant’s guilt or innocence. Failure to obtain an independent expert analysis of DNA evidence could mean the difference between a finding of guilt or innocence.

April 29, 2015

Intoxication as Defense in Chicago Criminal Case

by Law Offices of David L. Freidberg, P.C.

You have no doubt heard the story of a Kentucky woman who answered a knock at her door only to be assaulted by a stranger who began strangling her with a bra. The woman fended off the attacker after knocking her on the head with a ceramic chicken. The suspect pled not guilty and claimed she was under the influence of narcotics. But is being under the influence a valid criminal defense to the commission of any Illinois crime?

Intoxicated or drugged condition defense

Under Illinois law a person who commits a crime while intoxicated or otherwise under the influence of drugs or alcohol is still responsible for those crimes, unless the intoxication is involuntary and deprives him of substantial capacity to either:

Appreciate the criminality of the conduct; or
Conform his conduct to the law.

The intoxication defense is an affirmative defense. This means that the defendant, and not the prosecution, has the burden of proving that his intoxication was involuntary, and that as a result of this involuntary intoxication, he could neither understand nor control his conduct.

Under this standard, it is clear that knowingly drinking alcohol to the point of intoxication, or getting high on marijuana, cocaine or another drug, would fail the voluntary portion of this defense. But what situations would fall within the defense?

If the defendant was tricked or otherwise coerced into taking a substance that caused him to become intoxicated. Someone who ingested brownies or another food product made with marijuana, had a drug slipped in their drink, or in some other way took an intoxicating substance without knowing it was laced with drugs cannot be said to have become voluntarily intoxicated.

Another scenario would be when prescription or nonprescription medication affected the defendant in a way that was unexpected. Whether over the counter or prescribed by a prescription, drugs come with warnings of side effects. If drowsiness was a side effect, and the defendant ran over someone with his car after taking the drug and falling asleep at the wheel, he can’t be said to be involuntarily intoxicated. It was not his intent to become impaired, but he knowingly took the drug, with full knowledge of the potential side effects, and got behind the wheel anyway. The same could be said about a defendant who took a drug knowing that it had caused a reaction in the past. For example, maybe the defendant took medication that one day caused him to have a seizure. If he was in an accident at that time, he could successfully invoke the intoxication defense, because he had no idea the drug would cause that reaction. But if he took the drug again, knowing how his body may sometimes react, his intoxication would not be considered involuntary.

The above scenario would be different, however, if the defendant did not know the drug would affect him in the way that it did. For example, if the doctor failed to inform the defendant of possible side effects prior to prescribing it, or if the prescribed medication caused an adverse reaction with another medication the defendant was taking, and the physician failed to warn the defendant ahead of time of the consequences of the drug interaction. Another instance would be where the defendant had a previously undiagnosed medical condition that made him react to the drug in ways that could not have been anticipated when taken. If the defendant mistakenly took a powerful narcotic, when he thought he was taking something as ordinary as aspirin, could also be enough to invoke the intoxication defense.