Articles Posted in Felonies

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A Waukegan woman was sentenced to 24 months of probation and six months intermittent imprisonment, to be served via electronic monitoring and home confinement, for her role in the kidnapping, beating and sexual assault of another woman. The defendant helped her cousin, who was sentenced to 40 years in prison, kidnap his ex-girlfriend, but was not involved in the sexual assault or beating. The defendant was initially charged with aggravated kidnaping, but the charge was reduced to kidnaping due to her testimony against her cousin.

Chicago Plea Agreement

This is a case where the prosecution and judge made the right call, and highlights the importance of having an effective and experienced criminal defense attorney.

The defendant admitted to participating in the kidnapping, although she had no idea when she and her cousin stopped at the victim’s home that the kidnapping would happen. In the case of kidnapping, the fact that she was unaware of her cousin’s intentions is irrelevant. Under Illinois law, a kidnapping occurs when a person “knowingly…carries another from one place to another with intent secretly to confine that other person against his or her will.” Once the victim was placed in the defendant’s car and she drove off, she committed the act of kidnapping, because she knew she was transporting the victim to another location against her will.

The judge in the case admonished the defendant for failing to contact police once she realized what was going on. In this situation, it is probably safe to assume that since the defendant had no idea her cousin intended to kidnap the victim, she was shocked that he was capable of not only kidnapping, but the subsequent beating and repeated sexual assaults. She likely feared for her safety, which caused her to assist in kidnapping the victim and prevented her from reporting the sexual assault to police during the 21 hours the assault occurred.

While that fear was insufficient to get the charges against her completely dropped, it was a sufficient mitigating factor that, when combined with her willingness to cooperate with the prosecution and testify against her cousin, was enough to get the charges against her reduced.

An experienced criminal defense attorney knows that a jury trial is not always the wisest option. Sometimes the circumstances of the case, coupled with the willingness of the prosecution to negotiate, necessitate accepting a plea agreement. Accepting a plea agreement should not be considered defeat. Plea agreements, when properly structured through skillful negotiation by an experienced criminal defense attorney, not only save the defendant the stress and uncertainty of trial, but usually result in minimal prison time.

In this case, the defendant only served five months in prison following her arrest. Although home confinement and electronic monitoring is no fun, it is a better outcome than a conviction for aggravated kidnapping, which can add up to 25 years to the regular 18 – 30 months imprisonment handed down for kidnapping. Continue reading

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You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.

Thanks to the proliferation of television crime shows, you likely know what the above quotation is – the Miranda warnings, which every Chicago police officer is required to read prior to the arrest and interrogation of every criminal defendant. These rights are named after Miranda v. Arizona, the United States Supreme Court case that created the warnings, and failure to read a Chicago criminal defendant those rights, or questioning him after he has invoked his right to silence or requested a criminal defense attorney, may result in his statements being held inadmissible in a Chicago criminal court.

What you may not know is that there are circumstances where the Chicago police can question you without first reading the Miranda warnings. There are also circumstances where the police may question you even though they have read the rights. Statements you make in either of these situations may be admissible in court.

Illinois Police and Miranda Warnings Require Custody

 

Chicago police are required to read a criminal suspect the Miranda warnings when he is in custody. “In custody” means when the suspect is deprived of his freedom of movement in any significant way, or when the police officer’s actions indicate that the suspect is not free to leave.

How does this work in the real world?

Obviously, if you are placed in handcuffs on the street corner, or brought into a police interrogation room, you are in police custody and should be given the Miranda warnings.

But imagine you are walking down the street and a police officer stops you. He asks what you were doing standing on a deserted street corner, alone, for 10 minutes. You say you were waiting for a friend who never showed up. The officer thanks you for your time and tells you to have a nice day.

No problem there. No arrest was made, you made no statement to the officer, and you were free to walk away. Now what if, when the officer asks what you were doing, you panic and tell him that you were there to meet your dealer, who was going to give you drugs to sell for the week. These statements would be entirely admissible in court, even though you did not receive the Miranda warnings. There was no custodial situation, and no interrogation. The police officer simply asked you a question, and you unfortunately gave him a very guilty answer.

Now imagine that after the officer tells you to have a nice day, he asks if you have noticed any suspicious activity in the area. Have you seen any drug deals? Were you there trying to buy or sell drugs? Depending on the officer’s demeanor during these questions – whether he had his hand placed on a weapon or was in another threatening pose, how close he was to you, or whether his questions seemed accusatory – this could become a custodial situation. But chances are, without anything more, the court would not consider this a custodial situation, and any statements made to the officer would be admissible.

Now let’s say after you turn to walk away, the officer asks that you come sit in his squad car so he can ask you some questions. You politely decline, indicating that you have other things to do. The officer, however, insists. At this point, most people would no longer feel free to leave. This would be a custodial situation, even though no arrest has been made, and the police officer would be required to read you the Miranda warnings.

In any custodial situation, the police must read you your Miranda warnings. They are not required to read you these rights any time they approach you. The Miranda warnings are only required where your freedom of movement has been restricted to the point that a reasonable person would no longer feel free to leave. Any violation of the Miranda ruling will cause any statements made to the police to be kicked out of court.

Chicago Criminal Suspect Must Affirmatively Invoke Miranda Rights

Even if the police follow proper procedure and read you the Miranda warnings, they are still free to question you, unless you affirmatively invoke those rights.

What does that mean? It means that you must say, “I wish to remain silent”. Sitting there in silence – while something every arrestee should do – does not invoke the right to remain silent.

Failure to affirmatively invoke the right to remain silent means the police will continue to question you, hoping to wear you down and get you to confess. Once you say, “I wish to remain silent,” the police must stop all questioning. Invoking this right is so strong, the police may not even come back a few hours later and ask if you have changed your mind.  Continue reading

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The hit Netflix show “Orange is the New Black” is loosely based on the real-life story of Piper Kerman, who was charged with drug smuggling, money laundering and criminal conspiracy to import heroin. Kerman was sentenced by a Chicago federal judge to 15 months in a federal women’s prison.

Chicago Drug Conspiracy Crimes  pills-1213599-m

In Illinois drug conspiracy is defined as two or more people conspiring to distribute, possess or deliver a controlled substance. In addition, the conspirators must earn more than $500.

Tacking on a conspiracy charge to any underlying criminal charge increases the severity of the case, especially when the underlying charge is for a drug crime. For example, a conviction for possession with intent to distribute cocaine carries the possibility of 4 to 50 years in prison, depending on the amount intended for distribution. Tack on a conviction for drug conspiracy, which is a Class X felony, and you are facing a possible sentence of up to 60 years in prison, without the possibility of parole. All because you conspired with one or more people to distribute.

A drug conspiracy charge requires an aggressive defense. At minimum, the Law Offices of David L. Freidberg, P.C., will work to have the conspiracy charge dismissed, or gain an outright acquittal. To build a successful defense against a Chicago drug conspiracy charge, a skilled criminal defense attorney and a team of forensic experts will examine:

  • Statements made by co-conspirators incriminating you in the alleged conspiracy;
  • Whether co-conspirators were given immunity or promised reduced charges or sentences in exchange for their testimony;
  • Whether there was an actual co-conspirator, or was the other person (or persons) an undercover officer or a police informant;
  • Whether you ever did anything, by word or action, to renounce participation in the alleged conspiracy before the underlying drug crimes were committed;
  • Whether the prosecution can prove that you were actively involved in the conspiracy, and not merely aware of the details;
  • Whether any of the alleged co-conspirators’ statements were obtained in violation of the Miranda warnings;
  • Whether any evidence supporting the alleged conspiracy was illegally obtained; and
  • Whether the alleged conspiracy was actually formulated enough to allow the underlying drug crime to take place.

If a review of the evidence shows that it will be difficult to obtain an outright acquittal on the drug conspiracy charge, an attorney will work with the prosecution to enter into a plea agreement or to have the drug conspiracy charge dismissed in exchange for your cooperation. Negotiations with the prosecution to obtain leniency may include:

  • Your promise to testify against other co-conspirators;
  • Providing the prosecution with details pertaining to commission of the underlying crime, if it has not yet been committed;
  • Telling the prosecution the location of physical evidence that will strengthen their case against the co-conspirators; and
  • Providing the prosecution with the names of other co-conspirators whom the police have not yet discovered.

Continue reading

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The Illinois State Police issued emergency rules last week dealing with the Concealed Carry License Review Board’s (CCLRB) denial of concealed carry permits. The new rules were created after dozens of lawsuits and more than 200 petitions for review were filed by Illinois residents whose concealed carry permits were denied with no explanation.

Unfettered discretion over denials of concealed carry permits and a lack of transparency resulted in roughly 1,150 permits being denied. In Cook County alone, police have objected to 1,545 applications since January 2014, when the law went into effect.

Illinois Concealed Carry Law

Illinois became the last state to authorize concealed carry permits after a 2012 decision by the United States Court of Appeals for the 7th Circuit ruled that the state’s ban against carrying concealed weapons was unconstitutional. The concealed carry law, which went into effect January 1 2014, allows law enforcement agencies to object to a permit application if the agency has “reasonable suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety.”

Law enforcement may also object to the granting of a permit if an applicant has:

  • 5 or more arrests, for any offense, within the 7 years prior to the date of application for a permit; or
  • 3 or more arrests, for any combination of gang-related offenses, within the 7 years prior to the date of the permit application

Once an objection is filed, law enforcement must provide the CCLRB with information that supports its objection. Under the law, this information, as well as all records of the CCLRB’s proceedings, are kept confidential and may only be released under a court order – thus the reason for the lawsuits.

Under the new rules, if the CCLRB feels that an objection should be granted, it must send the applicant a notice of the objection, the agency that made the objection and the reasons for the objection, within 10 days of its preliminary decision. The applicant then has 10 days to provide the CCLRB any information he wants the board to consider in regard to law enforcement’s objection. The CCLRB may choose to hold a hearing on the objection following receipt of the additional information.

It is heartening to see the State Police respond so quickly and forcefully to the concerns raised by those who have been denied a permit and to amend the rules to require the CCLRB to notify applicants of the basis for law enforcement’s objection. The right to bear arms is guaranteed by the Second Amendment to the United States Constitution. If the CCLRB is going to have blanket discretion to deny applications – especially where objections may be made based on the number of arrests, not just convictions – applicants must know the reasons for the objection so that they can file a proper appeal.

It is difficult for applicants to successfully appeal a denial if they have no idea why the application was objected to in the first place, and requiring them to obtain a court order to release the CCLRB’s records is a commitment of time and financial resources many applicants may not be able to make. These new rules are a step in the right direction for safeguarding the rights of Chicago residents and Illinois citizens to own a firearm.  Continue reading

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Elgin police are asking local legislators to enact legislation that would make it easier to arrest individuals convicted of Illinois sex crimes who fail to comply with sex offender registration requirements. Illinois law requires all registered sex offenders to notify local law enforcement within three days of moving. But Elgin police complain that a 2013 Illinois Appellate Court decision makes their job harder and requires the utilization of too many resources in order to enforce the registration requirements. They are asking local legislators to create a new law that would in effect overturn the Appellate Court’s decision.

Illinois Sex Offender Registration Requirements

Illinois residents convicted of a sex crime must register as a sex offender:

  • Every year for 10 years for a ‘regular’ sex crime;
  • Every 90 days for life, if you are adjudicated sexually dangerous or sexually violent;
  • Every year for life if you are classified as a sexual predator; or
  • Every 90 days for the remainder of the registration period if you are convicted of violating the registration requirement.

In addition, registered sex offenders must notify local law enforcement of their residence within three days of moving. Law enforcement is required to verify each registrant’s address at least once per year.

Failure to comply with the registration requirements is a Class 3 felony for the first offense; additional offenses become Class 2 felonies.

People v. Robinson – Increasing the Burden of Proof in Sex Offender Registration Cases

In People v. Robinson, the defendant was convicted by the trial court for failing to inform law enforcement of a change in his address. Defendant appealed, arguing that the prosecution had only shown that he was not present at the address he had listed on his sex offender registration, and not that he had established a new fixed residence for more than five days, as the statute required.

The Illinois Appellate Court agreed with the defendant and reversed the trial court’s decision. In its ruling, the court stated that a conviction for failure to register under the sex offender registration law required that the defendant have a change of address AND that he lived at the new address for more than five days. The police did not fulfill its “affirmative obligation to investigate the charge,” instead assuming that because the defendant had apparently not resided at the registered address, he was residing somewhere else.

Elgin police claim that being required to prove that a registered sex offender has been living someplace other than his registered address for more than five days is burdensome. They cited one case where they expended 25 man hours to conduct surveillance and record-checking to determine where the registrant was living.

But given that a conviction for failing to comply with registration requirements may impose additional prison time and increase the burden of registration, the amount of resources expended by police in order to prove a registered sex offender has moved is a small inconvenience for them to pay. Continue reading

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A Will County, Illinois man whose conviction on charges of predatory sexual assault was overturned by the Illinois Appellate Court, lost on his bid to have the re-trial on those same charges dismissed due to concerns that the prosecution violated his right against double jeopardy.

Double Jeopardy in Illinois Sexual Assault Case

In People v. Ventsias, the defendant was convicted of one count of predatory sexual assault of a child and sentenced to 11 years in prison; he was acquitted on one count of aggravated criminal sexual abuse. The Illinois Appellate Court reversed the conviction due to a finding of juror bias, and ordered the defendant to stand trial again on the predatory sexual assault charge only.

Prior to the start of the new trial in 2012, the defendant agreed to a plea agreement whereby he would plead guilty to the charge of aggravated criminal sexual abuse – the charge which the jury had initially acquitted him of committing – in exchange for the prosecution not pursuing the predatory sexual assault charge.

Following the defendant’s entry of the guilty plea, the prosecution moved to vacate the plea due to concerns raised by the trial court that the plea may have been invalid due to double jeopardy concerns. Namely, the court was not convinced that Ventsias could waive his right to plead guilty to aggravated criminal sexual abuse, since he had already been acquitted.

The prosecution then moved for a second trial on the charge of predatory sexual assault of a child. Ventsias objected and filed a motion to dismiss, claiming that double jeopardy attached due to the prosecution’s prior agreement to no longer pursue the charge.

When Double Jeopardy Attaches in Illinois Criminal Cases

In a previous blog I discussed a recent United States Supreme Court case, Martinez v. Illinois, in which the court ruled an Illinois defendant could not be retried because double jeopardy attached. In that case, the prosecution refused to participate in the trial, and the trial court granted defendant’s motion to dismiss. The U.S. Supreme Court upheld the dismissal, citing the long-held rule that “jeopardy attaches when the jury is sworn in.”

Like Martinez, the jury in People v. Ventsias was sworn in. Why, then, did double jeopardy not attach to Ventsias, when it did in Martinez?

Because there are exceptions to when double jeopardy attaches.

If the defendant’s conviction is overturned on appeal, the prosecution is generally free to re-prosecute the case. This is because, unless the reversal was due to insufficient evidence proving guilt, the reversal is usually due to some error made during the trial, whether the admission of inadmissible evidence or some other violation of criminal procedure that interfered with the defendant’s ability to obtain a fair trial. In these cases, although technically the defendant is being retried for the same crime, the first trial is considered null and void because the parties involved did not play by the rules.

In Ventsias, the defendant’s acquittal was overturned on appeal due to juror bias, and not because the appellate court found insufficient evidence of his guilt. So although the jury had been sworn in, double jeopardy did not attach.

Ventsias argued that double jeopardy attached when the prosecution agreed not to re-file the predatory criminal sexual assault charges. Therefore, even though the plea agreement was dismissed, according to Ventsias the prosecution could not re-try him for predatory criminal sexual assault.

The appellate court dismissed Ventsias argument, stating that the basis for the plea agreement was unconstitutional. According to the court, double jeopardy is a right so fundamental to our criminal justice system, that a defendant cannot waive it. Therefore, because his waiver was unconstitutional, the prosecution was not bound by its earlier agreement to not re-prosecute Ventsias for predatory criminal sexual assault.

It remains to be seen whether the defendant will appeal the court’s decision, and whether, if accepted, the Illinois Supreme Court would rule on whether a defendant can waive his right to double jeopardy.

Criminal laws are in place to protect the rights of the accused. While the state cannot infringe upon those rights, the defendant should have the right to waive them if, pursuant to his attorney’s advice, it is in his best interest to do so.

In this case, a conviction on a charge of aggravated sexual abuse carries a maximum prison term of seven years – four years less than what Ventsias had been sentenced to under the predatory sexual assault charge. So it was in Ventsias’ best interest to waive his double jeopardy protection and plead guilty to the lesser charge, even if he had already been acquitted. It does not seem right that the court can take that away from a defendant.  Continue reading

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Hundreds of pictures and more than a dozen videos found on a Chicago man’s computer have led to charges of possession of child pornography, a class 2 felony. If convicted, the charge carries a mandatory minimum of four to 15 years in prison, or 30 years if any of the images are of children under age 13. Conviction of possession of child pornography also requires registration as a sex offender.

Illinois Possession of Child Pornography

An Illinois resident commits the crime of possession of child pornography if he has in his possession any film, video or photographs (“photos”) of children under the age of 18 participating in any type of real or simulated sexual act. The person must know that the photos in his possession depict sexual acts, and he must know, or reasonably should know, that the children depicted are under the age of 18.

Defense against Illinois Charge of Possession of Child Pornography

Just because the police located images or videos depicting child pornography on your computer or other electronic device does not mean you have no defense. Evidence of photos on your computer are just that – proof that the images exist on the device. As discussed above, conviction for possession of child pornography requires that the defendant knew that the images were child pornography, and that the people depicted were under the age of 18. Without proving both of these facts, the prosecution cannot make a case against the defendant, and the result is an acquittal.

When building a defense against a Chicago charge of possession of child pornography, a defense attorney  will examine all of the evidence to determine whether the prosecution can prove that you knowingly possessed child pornography, and that you were aware that the persons depicted were children. When examining the evidence, a criminal defense attorney will consider:

  • Whether the search warrant was legally obtained and not based on false evidence;
  • Whether the images were placed on the defendant’s computer during a time that the computer was in his possession and control. For example, an attorney’s forensic experts will examine computer records to determine whether the images could have been placed on the computer following the defendant’s arrest, or when it was at a computer repair shop;
  • Whether anybody else had access to the defendant’s computer and could have downloaded the photos;
  • Whether it can be proven that the defendant actually looked at the files, or was in any way aware they were on his computer. For example, could they have been downloaded on to his computer as part of a Trojan horse, malware or other computer hacking program;
  • Whether a reasonable person would have known that the people depicted in the photos were under the age of 18, and;
  • Whether it can be proven that the defendant downloaded or otherwise placed the images on his computer or other electronic device.

In any criminal case, our goal is to obtain an acquittal or outright dismissal of the charges. If, after a careful review of all of the evidence, either of those scenarios seem unlikely, then our goal is to work with the prosecution to win a reduction in charges or enter in to a plea agreement. Conviction on a charge of possession of child pornography is serious, and the Law Offices of David L. Freidberg, P.C., will work diligently to achieve the best possible outcome.  Continue reading

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A Chicago man was charged with aggravated battery, aggravated discharge of a firearm and aggravated discharge of a firearm near a school in late May following a shooting of a man near a Lawndale elementary school.

Chicago Aggravated Discharge of Firearm

You can find an in-depth discussion on the differences between battery and aggravated battery on my website, and last week I discussed one aspect of aggravated discharge of a firearm on the blog, as it pertains to firing at a vehicle. Discharge of a firearm is also automatically upgraded to ‘aggravated’ if the discharge occurs within 1,000 feet of school property or any school activity, regardless of whether school is actually in session.

As odd as it seems, in this case if the shooting had occurred 1,001 feet from the school, the defendant would have been charged simply with aggravated battery and discharge of a firearm. But because the shooting occurred closer to the school, he was slapped with the additional charge of aggravated discharge of a firearm, all because of the location.

Aggravated discharge of a firearm near a school is a Class X felony, punishable by no less than 10 and no more than 45 years in prison.

Defense Against Aggravated Discharge of a Firearm near School

As in any criminal defense, the first step is to determine whether the evidence supports a conclusion that the defendant was in fact the shooter. Eyewitness testimony is often unreliable. If that is the only evidence tying the defendant to the scene of the crime, it can often be successfully disputed in court, particularly if other evidence tends to disprove the prosecution’s contention that the defendant committed the crime.

If the charges were based in whole or in part on forensic evidence, it is important that a team of forensic experts examine the evidence in order to determine whether the prosecution’s experts came to the right conclusion. For example, if an arrest was made based on forensic evidence linking the gun to the defendant, we would want to examine:

  • Whether the defendant’s fingerprints were found on the weapon;
  • Whether any other fingerprints were found on the weapon, and;
  • Whether gunpowder residue matching the weapon was found on the defendant.

Lack of fingerprints or gunpowder residue linking the defendant to the weapon, or the presence of another set of fingerprints on the weapon, would help plant doubt on the prosecution’s assertion that the defendant was in fact the shooter.

Aggravated discharge of a firearm requires that the defendant intentionally fired his weapon. Our team of forensic experts would also examine whether there is any possibility that the gun could have been discharged due to a malfunction. If this were the case, it would negate the intentional requirement and result in a dismissal of the charge.

Aggravated discharge of a firearm in Illinois also requires that the defendant knowingly discharged the firearm near the school. If it can be shown that the defendant did not know that he was in a school zone when the shooting occurred – for example, if there were no signs at the location of the discharge indicating that he was in a school zone – then it may be possible to have the charges dismissed. Continue reading

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A Berwyn woman was convicted in May of three felony counts of criminal neglect in the 2011 death of her 14-year-old son, who was disabled. She had originally been charged with child endangerment, but those charges were dropped.

The son, who had been found in the front yard of the family home after paramedics were summoned, died of pneumonia. His mother said she was treating him for an illness with antibiotics intended for animals. Police reported that the woman’s house was filthy, overrun with animals (some reportedly dead), and had no running water or working appliances. The woman and her mother, who also lived in the home, denied that the home was unlivable.

Criminal Neglect of Disabled in Illinois

Because of their vulnerability, Illinois law provides special protection to the disabled by making criminal neglect of the disabled a separate offense. In Illinois, the caregiver of a disabled person may be charged with criminal neglect if it can be proved that he or she knowingly:

  • Acted in a manner that caused the person’s life to be endangered, his health to be injured, or a pre-existing condition to deteriorate;
  • Failed to perform acts he knew, or reasonably should have known, were necessary to maintain the disabled person’s life or health;
  • Abandoned the person;
  • Physically abused, harassed, intimidated or interfered with the person’s personal liberty; or
  • Exposed the person to willful deprivation.

The caregiver cannot be charged if she made a good faith effort to provide for the disabled person’s needs, but was unable to provide that care through no fault of her own.

Criminal neglect is a Class 3 felony, unless the neglect resulted in the disabled person’s death, in which case it is a Class 2 felony. If prison time is imposed, it may be anywhere from three to 14 years.

Defense Against Cook County Charge of Criminal Neglect

Defending against charges of criminal neglect of the disabled is a sensitive area. The vulnerable in our society need extra protection, since they either lack the physical or mental capacity to care for themselves. But caring for the disabled can be overwhelming, particularly in the case of the Berwyn mother: she was a single parent raising three other children while simultaneously taking care of her elderly mother.

While being overwhelmed does not excuse failing to provide for a disabled person’s basic needs, it also does not paint a portrait of someone coldly indifferent to the needs of the person in her care. In the case of the Berwyn mother, there were additional factors that likely led to the jury’s decision, namely the home being full of living and dead animals. But for others, the overwhelming task and lack of services could offer mitigating circumstances that could either sway a jury to acquit or cause a judge to impose little to no prison time.

It is a complete defense to criminal neglect of the disabled if the caregiver can show that she tried to provide for the disabled person’s needs but, through no fault of her own, was unable to meet those needs. Illinois consistently ranks in the bottom five in national surveys for access to disability services, meaning well-intentioned caregivers could find themselves suddenly overwhelmed with no place to turn for help.

Other factors that may show that the caregiver was not at fault for failure to provide services could include:

  • Lack of health insurance, or health insurance that does not cover the disabled person’s needs;
  • Lack of income to provide for medical needs not covered by health insurance, or;
  • Documented attempts to acquire services from social service agencies.

Continue reading

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A Chicago man was charged on July 1 with murder, which police believe was gang-related. The suspect was arrested on a warrant and allegedly confessed.

Defense in Illinois Murder Case

Defending against an Illinois murder charge is multi-faceted. The prosecution’s case must be attacked from all sides, beginning with the arrest and police interrogation.

Illinois Arrest Warrant

In order to be arrested in Illinois the police must have a warrant of arrest (or arrest warrant), or must reasonably believe that the person arrested committed a crime.

A warrant of arrest is issued by a court. If the arrest warrant was issued based on deliberate lies or a reckless disregard for the truth, it may be possible to have the warrant dismissed, along with any evidence the police may have uncovered when executing the warrant. In any murder defense, we will closely examine the arrest warrant to make sure the facts that resulted in the court’s issuance of the warrant are true.

Admissibility of Confession in Illinois Murder Case

The first line of defense in any murder case is challenging the prosecution’s assertion that they have caught the right man. In this case the defendant allegedly confessed to committing the murder. But that does not mean this is an open and shut case.

Any confession requires careful examination of the circumstances surrounding the defendant’s arrest and leading up to confession. If police failed to follow proper procedure, the confession may be considered inadmissible. If the prosecution filed charges based solely on the confession, having it ruled inadmissible in court may result in the charges being dismissed outright.

Factors that could lead to the defendant’s confession being deemed inadmissible include:

  • Failure of the police to read the defendant his Miranda rights prior to conducting the interrogation;
  • Failure to provide the defendant an attorney following a request for one;
  • Continuing to question the defendant following his request for an attorney;
  • Continuing to question the defendant out of the presence of his attorney once he has obtained one;
  • Questioning the defendant under harsh or inhumane conditions, such as a four-day interrogation with no breaks;
  • Whether the police or prosecution promised the defendant leniency in exchange for the confession, or;
  • Whether the police fabricated evidence to obtain a confession.

Validity of Confession in Illinois Murder Case

If the police followed proper procedure in obtaining the confession, given that this is a gang-related case, we would look at whether it was a false confession. It is not uncommon in gang cases for members to take the fall for those higher-up in the gang, as a show of solidarity or as part of initiation.

If other evidence tends to dispute the fact that the defendant committed the murder, then the validity of the confession would be called into question. Such factors that may help prove the confession was false include:

  • Lack of forensic evidence linking the defendant to the crime;
  • Forensic evidence of another person found on the alleged murder weapon;
  • Threats of harm made to the defendant or his family;
  • Evidence calling into question the defendant’s ability to be at the murder scene at the time the murder was committed, or;
  • Eyewitness descriptions of the murderer that do not match the description of the defendant.

Other factors that come in to play in a murder defense include:

  • Deciding whether to invoke your right to a speedy trial;
  • Whether we can work with the prosecution to come to a plea agreement, if a review of the evidence looks like a conviction is likely, or if you do not want to take your chances before a jury, or;
  • Whether it is possible to obtain immunity from prosecution in exchange for testifying against someone else (for example, the head of the gang).

Continue reading

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