Criminal defense

December 30, 2015

Criminal Defense: Illinois’ Self-Defense Laws

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

Multiple murders on the streets of Chicago on any given weekend now seem to be a fact of life. The murder rate in Chicago has increased by 13% since 2013; shootings not ending in death were up 40% during the first three months of 2015. It is little wonder that Chicago residents do not feel safe on the streets, or even in their own homes. (See Chicago Tribune) So do you know your rights regarding self-defense, or defense of your property? If threatened with bodily harm or death, do you have a duty to retreat before defending yourself, or can you “stand your ground”? How much force can you use to prevent a “trespass,” reasonable or deadly? What is reasonable force and what is deadly force, and in what circumstances is it alright to use either?

Answers to These Questions are a Phone Call Away

A little while back, there was a lot of controversy over “stand your ground” laws after an incident that occurred in Florida. An aggressor-turned-victim was killed in an act of assault by another who claimed “self-defense.” This incident created such a fury throughout the nation, partly because of the racial component of the incident, and partly because people began to wonder at what point can they be arrested and tried for murder in a case such as this. States scrambled to take a second look at their “self-defense” laws. New laws were enacted, and some were reviewed and revised to fit the ever increasing violence in our overcrowded urban areas.

November 18, 2015

Felony Murder: When Self Defense is No Defense

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

First-degree murder carries the highest sentence of any single crime in all of Illinois and is subject to the mandatory minimum statute. This means that those convicted are almost guaranteed at least a 20-year prison term, and if a gun is used the mandatory minimum jumps to 45 years. Felony murder is a one type of first-degree murder.

If someone dies during the commission of a forcible felony, those committing the felony can be charged with first-degree murder. You can be charged with felony murder even if the person died accidentally or was killed by someone else, as long as a forcible felony was being committed at the time. Illinois prosecutors have even successfully brought felony murder charges in situations where a co-felon was killed by the police. A forcible felony is defined as sexual assault, robbery, burglary, arson, kidnapping, aggravated battery, and any other felony that involve the use of or threat of physical force or violence.

Self-Defense Claims are Unavailable

October 7, 2015

How Bail is Determined in Criminal Cases

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

When a person is arrested and faces criminal charges that may result in jail time, there is often a lengthy period of time between the initial arrest and the trial. During the time between your arrest and the eventual trial, bail can be posted, allowing you to remain free until trial.

What is Bail?

People post bail by paying money as a guarantee that they will not flee the area and that they will return for the trial. As long as the offender out on bail appears in court for trial, the money is returned. If the defendant does not return to the court, the bail money is forfeited.

September 17, 2015

Three New Criminal Laws in Illinois That You May Actually Benefit From

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

At any given time, thousands of Illinois residents are unable to secure a good job or any job at all, as a result of past mistakes. Even if you have paid your debt to society as a result of a criminal conviction, you may be one of the thousands of Illinois residents who has been relegated to live in poverty, even if you are trying to set your life on the right path. The good news is, three bills recently signed into law by Governor Rauner may address and ameliorate this issue. Read on to see if you may benefit from these new laws, which take effect the first day of 2016. If you think you might benefit, contact us today and let us help you explore your options.

HB 3475

Beginning January 1, 2016, House Bill 3475 expands the list of those eligible to receive a Certificate of Good Conduct and a Certificate of Relief from Disability. If you can show the court that you have turned your life around with clear and convincing evidence, then the court may issue either of these certificates. Such a certificate will go a long way to help you obtain a professional license or other employment, if the crime you were convicted of is one of the included new crimes that allows you to receive either of these certificates. The Law Offices of David Freidberg can help you determine if you may be eligible for one of these certificates.

HB 3149

Beginning January 1, 2016, men and women who have been convicted of certain offenses and who have completed college, have a vocational certificate, or have finished some other educational or vocational training program can request the courts and police department to limit the number of persons allowed to access their old criminal records. In other words, you can ask to have your record sealed much sooner than the law currently allows. The Law Offices of David Freidberg can help you determine if you are eligible to have your record sealed early.

SB 844

The third and final new bill signed into law by Governor Rauner is SB 844. For those who have older convictions, SB 844 allows you to request that the court limit who can look at your old records three years after you complete your sentence (the current law requires you wait four years). Depending on the crime you were convicted of, this new law may even allow your records to be sealed two years after your sentence is complete. Call David Freidberg today and find out if you are eligible to benefit from SB 844.

These bills will breathe new opportunity into the lives of over 1 million Illinois residents whose potential was previously squandered for lack of second chances. Now, people who have made mistakes, served their sentence, and been rehabilitated can move beyond their pasts and into their futures. Continue reading

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.